c.fc 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


^- 


CASES  ON  THE  LAW  OF  PROPERTY 

VOL.     I. 

PERSONAL  PROPERTY. 

By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

VOL.  n. 

RIGHTS  IN  ANOTHER'S  LANDS. 

By  Harry  A.  Bigelow. 

VOL.  in. 

TITLES  TO  REAL  PROPERTY. 

By  Kalpli  W.  Aigler,  I'rofessor  of  Law  in  the 
University   of  Michigan. 

VOL.  IV. 

FUTURE  INTERESTS. 

By  Albert  M.  Kales,  Professor  of  Law  in  Har- 
vard University. 

VOL.   V. 

WILLS,  DESCENT,  AND  ADMINISTRA- 

TION. 

By  George  P.  Costigan,  Jr..  Professor  of  Law  in 
Northwestern  University. 

Big.Pebs.Prop.  (il) 


CASES  ON  THE  LAW  OF  PROPERTY 


VOLUME  1 


PERSONAL  PROPERTY 


BY  HARRY  A.  BIGELOW 

PROFESSOE   OF   LAW    IN    THE   UNIVEESITT   OF   CHICAGO 


AMERICAN  CASEBOOK  SERIES 

WILLLMI  R.  VANCE 

GENEBAL   EDITOB 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1917 


671009 


Copyright,  1917 

BY 

WEST  PUBLISHING  COMPANY 
(Big.Pebs.Prop.) 


T 

1*1  n 


THE  AMERICAN  CASEBOOK  SERIES 


The  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements : 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems.    From  this  masterly  report,  so  replete  with  brilliant  analysis 

(V) 


Vi  PREFACE 

and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says: 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 
of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 
'"It  emphasizes  the  scientific  character  of  legal  thought ;  it  goes  now 
a  step  further,  howev'er,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  tlie  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  wdiere  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 


PREFACE  Vll 

The  general  purpose  and  scope  of  this  series  were  clearly  staled  in 
the  original  announcement : 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 
tations of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  (Combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically ;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Evidence. 

Agency.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Contracts.  Mortgages. 

Corporations.  Partnership. 

Constitutional  Law.  Personal  Property. 

Criminal  Law.  did  <..     f  ^^'  ^^"' 

„  .    .     ,  „         ,  Real  Property.  J.  2d      " 

Crimmal  Procedure.  (_  3d 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 


Vin  PREFACE 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 
and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published,  or  put  in  press,  books  on  the  following  subjects: 

Administrative  Law.     By  Ernst  Freund,  Professor  of  Law  in  the 

University  of  Chicago. 
Agency.    By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 

of  Michigan. 
mils  and  Notes.    By  Howard  L.  Smith,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin,  and  William  U.  Moore,  Professor  of  Law 

in  the  Columbia  University. 
Carriers.    By  Frederick  Green,  Professor  of  Law  in  the  University  of 

Illinois. 
Conflict  of  Lazi'S.     By  Ernest  G.  Lorenzen,  ProfesSQr  of  Law  in  the 

University  of  Minnesota. 
Constitutional  Law.    By  James  Parker  Hall,  Dean  of  the  Faculty  of 

Law  in  the  University  of  Chicago. 
Corporations.    By  Harry  S.  Richards,  Dean  of  the  Faculty  of  Law  in 

the  University  of  Wisconsin. 
Criminal  Laiv.     By  William  E.  Mikell,  Dean  of  the  Faculty  of  Law  in 

the  University  of  Pennsylvania. 
Criminal  Procedure.    By  William  E.  Mikell,  Dean  of  the  Faculty  of 

Law  in  the  University  of  Pennsylvania. 
Damages.    By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 

of  Chicago,  and  Barry  Gilbert,  Professor  of  Law  in  the  Uni- 
versity of  Illinois. 
Equity.    By  George  H.  Boke,  Professor  of  Law  in  the  University  of 

California. 
Insurance.     By  W.   R.  Vance,  Dean  of  the  Faculty  of  Law  in  the 

University  of  Minnesota. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan, 
Jr.,  Professor  of  Law  in  the  Northwestern  University. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  Pro- 
fessor of  Law  in  the  Northwestern  University,  and  Chester  G. 
Vernier,  Professor  of  I<aw  in  tlie  University  of  Illinois. 


PREFACE  IX 

Pleading  (Common  Lazv).  By  Clarke  B.  Whittier,  Professor  of  Law 
in  the  Stanford  University,  and  Edmund  M.  Morgan,  Professor 
of  Law  in  the  University  of  Minnesota. 

Property  (Titles  to  Real  Property).  By  Ralph  W.  Aigler,  Professor 
of  Law  in  the  University  of  Michigan. 

Property  (Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
L'niversity  of  Chicago. 

Property  (Wills,  Descent,  and  Administration).  By  George  P.  Costi- 
gan,  Jr.,  Professor  of  Law  in  the  Northwestern  University. 

Qtiasi  Contracts.  By  Edward  S.  Thurston,  Professor  of  Law  in  the 
University  of  Minnesota. 

Sales.  By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 
of  Chicago. 

Suretyship.  By  Crawford  D.  Hening,  Professor  of  Law  in  the  Uni- 
versity of  Pennsylvania. 

Torts.  By  Charles  M.  Hepburn,  Professor  of  Law  in  the  University 
of  Indiana. 

Trusts.  By  Thaddeus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

IVills  and  Administration.  By  George  P.  Costigan,  Jr.,  Professor  of 
Law  in  the  Northwestern  University. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 


The  following  well-known  teachers  of  law  are  at  present  actively 
engaged  in  the  preparation  of  casebooks  on  the  subjects  indicated  be- 
low: 
Edward  W.  Hinton,  Professor  of  Law  in  the  University  of  Chicago. 

Subject,  Evidence. 
Arthur  L.  Corbin,  Professor  of  Law  in  the  Yale  University.    Subject, 

Contracts. 
James  Brown  Scott,  Professor  of  International   Law  in  the  Johns 

Hopkins  University.     Subject,  International  Law. 
A.  M.  Catlicart,  Professor  of  Law  in  the  Stanford  University.     Sub- 
ject, Code  Pleading. 
Albert  M.  Kales,  Professor  of  Law  in  the  Northwestern  University. 
Subject,  Property. 

William  R.  Vance, 

General  Editor. 
Mat,  1917. 


AUTHOR'S  PREFATORY  NOTE 


It  is  perhaps  an  open  question  whether,  in  the  first  year  course  in 
property,  cases  dealing  with  possession  should  precede  or  follow  those 
dealing  with  the  acquisition  of  ownership.  The  author,  after  experi- 
menting with  hoth  orders,  has  found  the  order  here  adopted  more  sat- 
isfactory personally.  At  the  same  time  the  possibility  of  taking  up 
first  the  acquisition  of  ownership  has  been  borne  in  mind,  and  the 
cases  on  that  topic  have  been  selected  and  arranged  in  the  light  of 
that  possibility.  The  chapter  dealing  with  the  forms  of  actions  may 
seem  unnecessarily  long.  The  relation  between  the  so-called  substan- 
tive rights  and  forms  of  action  is,  however,  so  intimate  that  the  stu- 
dent's attention  cannot  be  too  soon  called  thereto ;  and  the  course  in 
personal  property  not  only  gives  a  good  opportunity  for  bringing  out 
that  relation  in  connection  with  property  rights,  but  may  also  well 
serve  as  a  general  introduction  to  the  subject  of  the  forms  of  common 
law  actions. 

In  the  preparation  of  the  cases  the  names  and  arguments  of  the  at- 
torneys have  been  regularly  omitted.  Other  omissions  are  indicated 
by  stars.  The  author's  statements  of  fact  or  additions  to  the  text  of 
the  decisions  are  in  brackets. 

Harry  A.  Bigelow. 
The  University  of  Chicago  Law  School, 
May  16,  1917. 

(XX)* 


TABLE  OF  CONTENTS 


CHAPTER  I 

Page 
Distinction  Between  Real  and  Pebsonal  Pkopertt 1 

CHAPTER  II 
Rights  op  Action  Based  on  Possession  ob  on  Owneeship 4 


CHAPTER  III 

POSSESSOBY   INTEBESTS   IN    CHATTELS 
Section 

1.  Finder    25 

2.  Bailor  and  Bailee   43 

I.    In  general  43 

II.     Lien    48 

(A)  Scope  of   Lien 48 

(B)  When  Good  Against  Others  than  the  BaUor 75 

(0)    Loss   of   Lien 97 

III.    Pledge    119 


CHAPTER  IV 
Acquisition  of  Ownebship 

1.  Mere  Taking  of  Possession 141 

2.  Adverse  Possession  150 

3.  Accession    160 

4.  Confusion    195 

5.  Judgment    223 

6.  Satisfaction  of  Judgment 227 

7.  Gift    241 

CHAPTER  V 

Fixtures 

1.  When  Chattels  Become  Fixtures 264 

2.  Annexation  to  the  Land  of  Another 301 

I.     Landlord  and  Tenant 301 

II.     Other    Relations 335 

3.  Conflicting  Rights  Arising  from  the  Ambiguous  Nature  of  Fixtures. ..  352 

CHAPTER  VI 

Emblements    3S1 

Big.Pebs.Pbop.  (xiii)* 


TABLE    OF  CASES 

[TnXES  OF  CASES   FEINTED   HEREIN  AEE  SET   IN   OBDINABT   TYPE.      CASES   CITED   IN 

FOOTNOTES  ABE  INDICATED  BY  ITALICS.      WHEBE  SMALL  CAPITALS 

Afi£  USBO,  THS  CASE  IS  BEFEBBED  TO  IN  THE  TEXT] 


Page 

Abrahamg  v.   Tappe 380 

Adams  V.  Burton 147 

Ad<jms  V.  Meyers 207 

Adams  Machine  Co.  v.  Interstate 

Building,   etc.,   Ass'n 360 

Aldine  Mfg.  Co.  v.  Phillips 74 

Aldrich  V.  Parsons 344 

Allen  V.  Allen 258 

Allen  V.  Smith 10.5 

Altliause,  Matter  of 3 

Ames  V.  Palmer 23 

Andreics  v.  Keith 45 

Angus  V.  McLachlan 119 

Anonymous  17 

Anonymous    177,  235,  245,  247 

Armory  v.  Drtamirie 25 

Aemoby  v.  Delamibie 9,  13,  39 

Armroyd  v.  Williams 22'.i 

Astbury,  Ex  parte 276 

Atwatcr  v.  Tupper 234 

Avery  v.  Uackley 117 

Ayre  v.  Eixson 219 


Bacon  V.  Klmmel 240 

liaker  v.  McClurg 309 

Baltintore  Marine  Ins.  Co.  v.  Dal- 

rymple   123 

Barker  v.  Bates 29 

Barwick  v.  Barwick 15 

Beach  v.  Schmultz 214 

Beadle  v.  Hunter  &  Garrett 1.53 

lieldon  V.  Perkins 1.36 

Berkshire  Woollen  Co.  v.  Proctor  97 

Beits  v.  Lee 179 

Bevan   v.   Waters 62 

Binns  v.  Pigot 89 

Bird  V.  Georgia  R.  R 83 

Bird  of  Paradise,  The 119 

Black  V.  Breniuin 72 

Blackman  v.   Pierce 115 

Blades  V.  Uiggs 149 

Blake  v.   Nicholson 70 

Bleaden  v.  Hancock 66 

Bligh  V.  Brent 3 

Bloss  V.   Holman 17 

Boardmau  v.  Sill 108 

Bosttrick  v.  Leach 297 

Bowen  v.  Sullivan 32 

Bra^kett  v.  Goddard 383 

Bradley  v.  Bailey 392 

Biq.Pebs.Pbop.  (XV) 


Page 

Bradley  v.  Copley 20 

Brennan  v.   Whitaker 352 

Brewster  v.  Warner 15 

Bridges  v.  Hawkesworth 26 

Bbidgb>s  v.  Hawkesworth 31 

Briygs  v.  Boston  d  L.  R.  Co 87 

Bbinsmead  v.  Harbison 229 

British    Empire    Shipping    Co.    v. 

Somes 71 

Bbittain  v.  McKay 383 

Broadwood  v.   Granara 87 

Broadwood  v.  Granara 91 

Brown  v.   M'Gran 74 

Broicn  V.  Xorthcutt 207 

Brown  v.   Reno   Electric  IJght  & 

Power    Co 309 

Bryan  v.  Weems 157 

Bryant  v.   Ware 221 

Bunn  V.  Markham 253 

Burrough  v.  Ely 74 

Bush,   Ex  parte 49 

Buster  v.  Newkirk 143 

Cain  V.  Moon 255 

Caldwell  v.  Tutt 105 

Caldwell  v.  Wilson 259 

Campbell  V.  Roddy 362 

Cannon  v.  Bare 341 

Cantwell  v.  Terminal  R.  Ass'n  of 

St.    Louis 70 

Capehart  v.  Foster 286 

Carlin  v.  Rittcr 26-j 

Carpenter  v.  Griffin 195 

Carrel  v.  Early 239 

Cartwbioht  v.  Green 32 

Case  V.  Allen 76 

Causey  v.  Empire  Plaid  Mills.  . . .  360 

Central  Branch  R.  Co.  v.  Fritz.  . .  195 

dmtury  Throwing  Co.  v.  Mullcr. .  79 

Chapin  v.  Freeland 150 

Chapman  v.  Allen 48 

Chase   v.   Corcoran 42 

Chase  v.  We.stmore 65 

Chase  v.  Westmore 70 

Chicago  &  N.  W.  R.  Co.  v.  Jenk- 
ins      68 

Claridge    v.     South    Staffobd- 

SHiEE  Tramway  Co 11 

Clark  V.  Banks ,390 

Coal  Co.  v.  Coai,  Co 169 


XVI 


TABLE  OF   CASES 


Page 

CJochrane  v.  Moore 2-41 

CooGs  V.  Bebnard 14 

Collamore  v.   GiUis 309 

Colorado  Min.  Co.  v.  Turck lGf> 

Colquitt  V.  Eirkman 79 

Cook  V.  Kane 92 

Cooper  V.   Woolfitt 3S6 

Corinth  Engine  <C-  Boiler  Works  v. 

Mississippi  Cent.  K.  Co 83 

COBTELYOU    V.    LaNSINO 99 

Covington  v.   'Seiohcrgcr 93 

Cowell  V.    Simpson 117 

Culling  v.  Tuffnell 304 

Curran  v.  Smith 282 

CuBTig  V.  Groat 179 

Dana   v.   Burke 282 

Danforth  v.  Pratt 100 

Daniels  v.  Brown 213 

Danielson  v.   Roberts 33 

Dartmouth  College  v.  Internation- 
al Paper  Co 165 

Dartmouth  College  v.  Internation- 
al Paper  Co 174 

Datjbignt  v.  Duval 23,  101 

Davis  V.  Bowsher 51 

Davis  V.  Emery 297 

Dcaderick  v.  Oulds 25 

Dean  v.  Allaly 305 

Debow  V.  Colfax 39S 

Deeze,  Ex  parte 53 

Deitz  V.  Field 230 

Demainbby  v.   Metcalfe 121 

Dennett  v.   Hopkinson 385 

Denver  <f  R.  O.  H.  Co.  v.  HiU 83 

Devereux  v.  Fleming 72 

De  Vinne  v.  Rianhard 66 

Devol  V.  Dye 251 

D'Eyncourt  v.  Gregory 291 

Dirks  V.  Richards 110 

Dollar  V.  Roddenbery 398 

Domestic    Seivi/ng    Mach.    Co.    v. 

Walters  94 

Donald  v.  Suckling 135 

DOWS  v.   MOREWOOD 115 

Dows  V.  Morewood 115 

Drake,   Ex  parte 227 

Drew  v.  Hagerty 25i 

Dudley  V.  Hurst 282 

Dubant    Mining    Co.    v.    Percy 

Mining    Co 168 

Durfee  v.  Jones 37 

Eaton  V.  Langley 160 

Edghill  v.  Mankey 387 

Ellis  V.  Wire 182 

Elices  V.  Brigg  Gas  Co 29 

Elwes  V.  Maw 303 

Enoch  V.   Wehrkamp 51 

Evans  v.  Roberts 385 

Ewarts  v.  Kerr 74 


Excelsior  Brewing  Co.  v.  Smith. 


Page 
.  376 


Fabrant  v.   Thomtson 225 

Fechet  V.   Drake 28.? 

Feder  v.  Tan  Winkle 270 

Ferguson  v.   Miller 146 

Ferguson  v.  Ray 35 

Ferriss  v.   Sciireineb 104 

First     Nat.     Bank     of    Elgin    v. 

Schween   210 

First   Nat.  Banic  of  Louisville  v. 

Boyce   136 

Fisher  v.   Brown 193 

Fiteh  V.  Newberry 79 

Pitch  v.  Newberry 84 

Fletcher  v.  Fletcher 258 

Florala  Sawmill  Co.  v.  Parrish. .  392 

Flower's  Case 248 

Flynt  V.  Conrad 383 

Foley  v.  Hill 201 

Folsom    V.    Barrett Ill 

Forbes  v.  Marsh 21 

Foreman  v.   Neilson 236 

Forth  V.  Simpson 63 

Foster   v.    Fidelity   Safe    Deposit 

Co 36 

Foster  v.   Warner 213 

Fowler  v.  Parsons 115 

Fuller  V.   Bradley 61 

Fuller  V.  Tabor ^ 298 

Fulton  V.  Norton 296 

Galigher  v.  Jones 125 

Oalland,  In  re.... 55 

Gammon  Theological  Seminary  v. 

Rohbins  261 

Gardner     v.      Ninety-Nine     Gold 

Coins   39 

Gusaway  v.  Thomas 338 

Gates  V.  Rifle  Boom  Co 174 

GaUin  V.  Vaut 155 

German  Sav.  Bank   of  Baltimore 

City  V.  RensJiaw 136 

Gibbs  V.  Estcy 298 

GlLLETT  V.   WniTING 129,  130 

Gilson  V.  Gwinn 78 

Goddard  v.  WincJvell 29 

Gotf  V.  Craven 238 

Goff  V.  Kilts 147 

Gordon  v.  Harper 18 

Gordon  v.   Silber 95 

Goss  V.  Emerson 119 

Cough  V.  Wood 370 

Graves  v.  Weld 392 

Giawsliay  v.  Horn  fray 63 

Great  SoutJiern  Gas  d  Oil  Co.  v. 

Lcgan  Natural  Gas  £  Fuel  Co.  219 

Griffith  V.  Fowler 224 

Grinnell  v.  Cook 97 

GRYjres  v.  BOWEBEN 315 

Guernsey  v.  Phinizy 29!) 


TABLE   OF   CASES 


xvn 


Page 

Gustin  V.   Embury-Clarh  Lumber 

Co 165 

Guthrie  v.  Jones 325 

Guthrie  v.  Jones 290 

GutUier  V.  Pacific  Steam  Whaling 
Co 15 

Hackett  v.  Amsden 204 

Ball  V.  Pwkard 24 

Hall  V.  Pillsbuni 207 

Halliday  v.  Holgate 126 

Hamaker  v.  Blanchard ^^- 

HamUton  v.  Davis 149 

Hamilton   v.    McLaughlin 112 

EamJin  v.  Parsons 349 

HAinioND  V.  Danielson 78 

Hammond  v.  Danielson 76 

Hanna  v.  Phelps 113 

Harris  v.  Carson 300 

Harris  v.  Woodruff 63 

Haetley  v.  Hitchcock 72 

Hartshorne  v.  Johnson 70 

Hatch  V.  Atkinson 253 

Heap  v.  Barton 317 

Heavilon  v.  Heavilon 382 

Hendrixson  v.  Cardwell 390 

Henly  v.    Walsh 72 

Herdic  v.  Young 164 

Hesseltine  v.  Stockwell 220 

Hillebrant  v.  Brewer 250 

Hilton  v.  Woods 16S 

Hobson   V.   Gorringe 355 

Holbrook  v.   Chamberlin 321 

Holdemess   v.    CoUinson 61 

Holland  v.  Hodgson 358 

Holland  v.  Hodgson 270 

HoUv  V.  Huggeford 22 

Hook  V.  Bolton 288 

Hooper  v.  Goodwin 248 

Hoover  v.  Epler 102 

Hopewell     Mills     v.     Taunton 

Savings  Bank 289 

Hopper  V.   Smith 122 

Horn  V.  Clark  Hardware  Co 327 

Houghton  v.  Matthews 51 

Hughes  v.  Cornelius 224 

Hughes   v.    Lambert viUe   Electric 

Li-ght,  Heat  &  Power  Co 285 

Hunt  v.  Bay  State  Iron  Co 370 

HuRD  V.  West 196 

Hurlbert  v.   Brlgham 53 

Illinois  d  St.  L.  R.  &  Coal  Co.  v. 

Ogle    170 

Irons  v.  Smallpiece 242 

Irons  V.  SmaUpiece 251 

Isaack  v.  Clark 41 

Isle  Royale  Min.  Co.  v.  Hertin...  171 

Jackson  v.  Cummins 62 

Jacobs  v.  Latour 63 

Big.Pebs.Prop. — b 


Page 

■Jacobs  V.  Latour 103 

James  &  Xeer  y.  Plank 207 

JaquUh  v.  American  Express  Co.  103 

Jegon  v.  Vivian. 169 

Jenkins  v.  Steanka 216 

Jcrmyn  v.  Schueppenhauser 372 

■Johnson  v.  Smith 140 

Johnston  v.  Fish 395 

Jones  V.  Pearle 108 

Joy   V.   Craicford 41 

JuDSON   V.   Etheridge 62 

Justice  V.  'Sesquchoning  Valley  It. 
Co 351 

Kaufman  v.  Leonard 107 

Keech  v.  Hall 397 

Keeler  v.  Kceler 360 

Keith  V.  De  Bussigney 45 

Kerford  v.  Mondel 110 

Kerr   v.   Kingsbury 318 

King  V.  Morris 342 

King  v.  Otley 265 

King   v.    Smith 153 

KiBKMAN    V.    SHAWCROSS 65 

Kirkm^n  v.   Shawcross 61 

Kittredge   v.   Woods 382 

K(/rbe  v.  Barbour 326 

Kniger  v.  Wilcox 50 

Lambert  v.  yicklass 103 

Lanwnd  v.  Richard 97 

Lane  v.   King 396 

Lane    v.    Old    Colony    &    F.    R. 

Co 70,  100 

Langdon  v.  Buchanan 271 

L<itham  V.  Attoood 392 

Lawton  v.  Lawtan 341 

Lawton   v.    Salmon 375 

I.EAME  V.   Bray 20 

Ledyard  v.  Hibbard 210 

Lie  V.  Atkinson 17 

Leland  V.  Gassett 344 

Leonard  v.  Clough 296 

IjiWIS  V.  MOTT .  134 

Lewis  v.  Ocean  Xav.  &  Piee  Co.  378 

Lewis  V.  Ocean  Xav.  &  Pier  Co..  .  318 

LiCKBARROW    V.    MaSON 101 

Liebe  v.  Battnwnn 255 

Linahan  v.  Barr 309 

Lindsay  v.  Witiotia  £  St.  P.  R.  Co   395 

Lir>sky  V.  Borgmann 264 

Little'dale  v.  Sc<i ith 144 

I/ivermore  v.  White 35 

Livingstone  v.   Rawyards  Coai 

Co 190 

Loeschman  v.  Machin 21 

London    &    Westminster    Loan    & 

Discount  Co.  v.  Drake 372 

Lord  V.  Jones 66 

Ijotan    V.    Cross 20 

Loughran  v.  Ross 115 


xviu 


TABLE   OF  CASES 


Page 

hovejoy  V.  Murray i238 

Lurch  V.  Wilson 94 

Lynde  v.  Parker 79 

McAvoY  V.   Medina 36 

McConnell  v.  Blood 273 

McCulloush  V.  Irvine's  Ex'rs 338 

McEwen  v.  Troost 260 

McFarland  v.  Wlieeler 97 

McGhce  V.  Edwards 78 

Mcllvane  v.  Uilton 97 

Mackintosh  v.  Trotter 326 

McRea    v.   Central    Nat.   Bank  of 

Troy   265 

MoVaughters  v.  Elder 160 

Mahonej'  v.  Martin 201 

Maloolm  v.  Sims-Thompson  Motor 

Car  Co 72 

Malone  v.  Lebus 263 

Maloney  v.  Kitvg 220 

Maiott  V.  Price 344 

Marks  v.  New  Orleans  Cold  Stor- 
age Co 74 

Marsh  v.  Fuller 253 

Marx  V.  Nclms 387 

Massachusetts  Nat  Bank  v.  Shinn  376 

Mathews  v.  Harsell 31 

Mears  v.  Callendcr 306 

Merby  v.  Green 27,  32,  37 

Merry  v.   Green 39 

Meux  v.  Jacobs 375 

Jlexal  V.  Doiirborn 115 

Meyers  v.  Sehemp 297 

Miekle  v.  Douglas 380 

Milicie  v.  Pearson 372 

MiUer  v.  Adsit 21 

Miller  v.  Dell 151,  154 

Miller  v.  Hjde 230 

JtiLLEK  V.   Mansfield OS 

Miller  v.  Wilson 292 

Minor   v.    Beveridge 128 

Mitchell  V.  Bridfouan 350 

Monti  V.  Bonus 291 

Moore  v.  Robinson 8 

Morey  v.  Uoyt 380 

Morgan   v.   Powell 169 

Muggridge  v.  Eveleth IS 

Mulgrave  v.  Ogden 41 

Mullelt  V.   Bradley 149 

Murphy  v.  Dunham 140 

Mtirphy  v.  S.  C.  d  P.  R.  Co ISii 

Xawahi  v.  Hakalau 392 

Naylor  v.  Mangles 53 

Ncsbitt  V.  St.  Paul  Lumber  Co 193 

Vew  York  Life  Ins.  Co.  v.  Alli- 
son     291 

Nicholson  V.  Chapman 55 

'Siculette  Lumber   Co.  v.  People's 

Coal  Co 69 

Noble  V.  Bosworth 295 


I  Page 

I  Noble  V.  Smith 251 

Nohle  V.  SylV(:.'<ter 296 

Norton  v.    Woodruff 197 

Norway,    The 113 

Note   387 

Oqden   v.    Stock 345 

O'Neal  V.  Baker ' 9 

Opperman  v.  Litthjohn 393 

Osgood  V.  Hoiiard 344 

Owirigs  v.  Estcs 288 


Pabst  Bretoing  Co.  v.  Greenberg . . 

Page  v.  Edwards 

Painter  v.  Harding 

Parker  v.  Copland 

Patten  v.  Union  Pac.  R.  Co 

Peck  V.  Batcheldcr 

Peck-Hammond  Co.  r.  Walnut 
Ridge   School   Dist 

Peirce  v.  Goddard 

Penton  v.  Robart 

Peoria  &  Pekin  Union  R.  Co.  v. 
United  States  Rolling  Stock 
Co 

Peters  Box  rf  Timber  Co.  v.  Lesh 

Philips  V.  Rubin-son 

Pickebell  v.  ('arson 

I'ickering  v.  Moore 

Pierce  v.  Schr^ick 

Pierson   v.   Post 

Pine  River  Logging  Co.  v.  Unit- 
ed  State.? 

Pine  River  Logging  £  Imp.  Co.  v. 
United  States 

Polk  £  Co.  V.  Melcnbacker 

Poole's   Case 

Potter  v.  Cromwell 

Powell  v.   Rich 

Preston  v.  Neale 

Pugh  V.  Arton 

Pulcifer  V.  Page 


11 
306 
140 
259 

S4 
294 

371 

193 
305 


67 

193 
9 

285 
211 
197 
141 

166 

193 
94 
302 
272 
382 
47 
380 
182 


Rahm  v.  Domayer 293 

Railroad  Co.  v.  Morgan 281 

Railway  Co.  v.  Hutchins 186 

Ratcliffe  v.  Davis 121 

Ray  V.  Xoung 321 

Reeder  v.  Sayre 391 

Regina  v.«  North  Staffordshibe 

R.    Co 284 

Regina  v.  Roice 29 

Rex  v.  Humphrey 64 

Rex  v.  Wynne 32 

Reynolds  v.  Ashby 371 

Ridden   v.  Thrall 256 

Ridden  v.  Thrall 252 

Rivara  v.  Ohio 66 

Robhins  &  Co.  v.  Gray 89 

Robert  Bros.  v.  Hurdle 394 

Roberta  v.  Koehler 70 


TABLE  OF  CASES 


XIX 


Page 

Roberts  V.   Wyatt 11 

Robinson  v.  Bakkr 78 

Hoiinson  v.  Baker SG 

Roderick  v.  Sanhoni 291 

Rogers  v.  Gilinger 300 

Rooth   V.   Wilson 6 

ROOTH   V.    AViLSOX ti 

Rosenhaum  v.  Hayes IIT 

T'ucker  v.  Donovan 102 

Ruggles  V.  Walker 100 

Rnshforth  v.   Hadfleld 60 

RrssELL  V.   Richards 194 

Russell  V.   Richards 361 

Rtder  v.  Hatuaway 179,  212 

St.   Louis,   I.   If.   d   S.   R.   Co.  V. 

Bi^gs   15 

St.  Paul  Boom'  Co.  v.  Kemp 219 

Salter  v.   Sample 344 

Saltus  V.  Everett lOS 

Sanders  v.  Davis 374 

Havannah,  F.  d  W.  Co.  v.  Talbot. .     S3 

Scarfe  v.   Morgan 108 

Schaaf  v.  Fries 123 

Schneider  v.  Dayton 66 

Schumacher  v.   Chicago  &  X.   W. 

R.   Co 66 

Scott  V.  Berkshire  Co.  Sav.  Bank  263 

Scudder  v.  Anderson 2S2 

Seebaum  v.  Handy 106 

Seeger  v.  Pettit 309 

Sexton  &  Abbott  v.  Graham 203 

Shapira  v.  Barney 334 

Shaw   V.    Fergusrm 74 

Sfieegog  v.  Perkins 252 

Sheridan  v.  Presas 136 

Shoecraft  v.  Bailey 97 

Shoemaker  v.   Simpson 347 

Silsbury  v.  McCoou 174 

Singer  Mfg.  Co.  v.  London,  etc.,  R. 

Co 83 

Single  V.  Schneider 183 

Skinner  v.  Upshaw 49 

Smart  v.  Sandars 74 

Smith  V.  Bay  State  Sav.  Bank...  2S8 

Smith   v.    Dearlove 96 

Smith  V.  O'Brien 63 

Smith  V.  Plomer 21 

Smith  V.  Smith 240,  253 

SN YDEB  V.  Vatjx 164 

Sollers  v.  SoHers 146 

South  Australian  Ins.  Co.  v.  Ran- 

dell   197 

South  Staffordshire  Water  Co.  v. 

Sharman 28 

SOVERN    V.    XORAN 33 

Sowden  v.  Craig 354 

Sparrow  v.  Pond 385 

Sproul  V.   Sloan 130 

Squire  &  Co.  v.  City  of  Portland. .  309 
Standing  v.  Bowring 263 


Page 

State  v.  McCann 38 

State   V.   Shaw 145 

State  v.  Shevlix 105 

Steinman  v.  Wilkins 64 

Stephenson  v.  Little 215 

StiUuian  V.   Hamer 351 

Stone  V.  Quanl 213 

StornTs  V.  Smith 76 

Sutton  V.  Buck 4 

Swan  V.  Bounies 54 

Swift  V.   Qifford 145 

Symmes  v.  Fbazier 58 

Talty    V.    Freedman's    Savings    & 

Trust  Co 133 

Tatum  V.  Sharpless 29 

Teaff  v.   Hewitt 268 

Terry  v.  Munger 234 

Thacher  v.  Hannahs 51 

Thames  Iron   Works  Co.   v.    Pat- 
ent Derrick  Co 73 

Thomas'  Adm'r  v.  Lewis 253 

Thompson  v.   Lacy 97 

Thrcfall   v.    Borwick 93 

Thresher  v.  East  London  Water- 

TVorks    318 

Thropp's   .ippeal 374 

Tippett  &  Wood  v.  Barhanl 366 

TOWNE    V.    i^SKE 290 

Trask  v.  Little 360 

Tripp  V.  Hasceig 381 

Tniistees  ot  Dartmouth  College  v. 

'International  Paper  Co 165 

Trustees  of  Dartmouth  College  v. 

International  Paper  Co 174 

TiithiU  v.   Wheeler 7 

Tyson  v.  Post 298 

United  States  v.  LorcnREY....  166 
United  States  v.  New  Orleans 

R.  Co 304 

United  States  v.  Van  Winkle.  .  169 
United  States  v.  Waters-Pierce  Oil 

Co 193 

Vail  V.  Weaver 270 

Van  Eman  v.  Stanchfield 140 

Van  Ness  v.  Pacard 306 

Vaughan  v.  Providence  <£  W.   R. 
Co 86 

Waite  V.   Grubhe 253 

Walker  v.  Crews 261 

Wall  V.  Hinds 312 

Wallace  v.   Woodgate 107 

Ward  V.  Ayre 215 

Ward  V.  Macauley 18 

Ward  v.  Macauley 19 

Ward  V.  Turner 25.3 

Ware,   In   re 227 


XX 


TABLE   OF  CASES 


Page 
Watruss   v.   First   Bank   of  Cam- 
bridge      318 

Watts-Campbell  Co.  v.  Yuenq- 

LINQ    311 

Weil  &  Uro.  v.  Silverstone 217 

Wells  V.  Baits 213 

Welsh  V.  Barnes IM 

Went  worth  r.  l^ay 58 

Western  Transp.  Co.  v.  Barber. . 

.      43,  102 

Westgate  v.  Wi.\on .335 

Wetiierbee  v.  Green 161,  188 

Weymouth  v.   Cuica<30  &  N.  W. 

R.  Co 185 

Wheeler  v.   Wlieeler 251 

Whipple  V.  Button 127 

White  V.  Arndt S24 

White  v.   Gainer 114 

White  V.  Griffin 23 

■rniite   V.  Martin 238 

White  V.  Philbrick 238 

White  Enamel  Refrigerator  Co.  v. 

Knise   .330 

Whitehead  v.   Bennett 300 

Whitmarsh  v.  Cutting .389 

Whitnev  v.  Huntington 193 

Whitney  t.  Peay 13G 


Page 
Wilensky  v.  Central  of  Georgia  R. 

Co 74 

Williams  v.  AUsup 75 

Williams  v.   Ashe. 136 

Willia7iis  V.   Vanderbilt 380 

Williamson  v.  J\'ew  Jersey  South- 
ern   Rij 282 

Wilson  V.  Gwjton 59 

Winchester  v.   Cbaiq 109 

Winkfield,   The 11 

Winn  V.  In/jlchi/ 303 

Winslow  V.  Bromich 2S1 

Witt,  In  re 53 

Woadson  v.  iXawtou 4 

Wolf  V.  ^Summers 69 

WOLFORD     V.     BaXTKR 3.32 

Wolford  V.   Baiter 282 

Wood  V.  Fisk 125 

Wood  V.  Piersmi 42 

Wooden-Ware  Co.  v.  United  States  190 

Woodson  V.  rparce 10 

Wright  v.  Du  Bignon 315 

Wright  v.  Skinner 169 

Wynkoop  v.  Seal 132 

Wystow's  Case 301 

York  V.  Oreenaugh 97 

Young  V.  Hlchena 143 


CASES  ON  PROPERTY 


PERSONAL  PROPERTY 


CHAPTER  I 


DISTINCTION  BETWEEN  REAL  AND  PERSONAL 
PROPERTY 


WILLIAMS,  PERSONAL  PROPERTY  (Lith  Ed.)  pp.  1-6. 

Property  in  English  law  is  divided  into  two  classes,  real  property 
and  personal  property,  and  these  are  governed  by  very  different  rules. 
This  great  classification  has  its  origin  in  the  fact  that  after  the  Xorman 
Conquest  land,  then  the  main  source  of  public  wealth,  became  sub- 
ject to  the  law  of  feudal  tenure,  which  was  not  applied  to  moveable 
things  known  as  chattels  or  goods.     *     *     * 

Another  diiference  between  fees  and  chattels  was  in  the  mode  of 
succession  after  death.  Fee  simple  estates  passed  at  common  law  to 
the  heir  of  the  tenant  who  died  possessed  of  them.  And  the  heir  was 
ascertained  from  amongst  the  tenant's  nearest  blood  relations  by  rules, 
of  which  the  most  prominent  preferred  males  to  females  in  the  same 
degree  of  relationship,  and  of  males  equally  related  selected  the  eldest 
as  heir  to  the  exclusion  of  all  others.  Originally,  it  would  seem,  the 
heir  was  also  entitled  to  his  deceased  ancestor's  chattels  for  the  pur- 
pose of  paying  the  ancestor's  debts.  But  afterwards  all  title  of  an 
owner  of  chattels  passed,  on  his  death,  either  to  the  persons  whom  he 
had  appointed  to  perform  his  will  and  who  were  called  his  execu- 
tors, or  if  he  died  intestate,  then  to  the  administrator  of  his  effects, 
appointed  in  pursuance  of  a  statute  of  Edward  III  from  among  the 
next  friends  of  the  deceased  by  the  ecclesiastical  authorit}',  to  whom 
the  administration  of  intestates'  effects  had  been  previously  commit- 
ted. And  the  administrator  of  an  intestate  is  bound  to  distribute  the 
surplus  of  his  chattels,  after  payment  of  his  debts,  between  his  wid- 
Big.Pebs.Peop. — 1 


2  DISTINCTION  BETWEEN  HEAL  AND  PERSONAL  PROPERTY      (Ch.  1 

ow  and  children  or  next  of  kin,  according  to  rules,  which  permit  males 
and  females  in  the  same  degree  of  relationship  to  share  equally,  giving 
no  preference  to  males  or  to  the  eldest  male. 

A  further  distinction  between  property  in  land  and  property  in  goods 
arose  from  the  diiiferent  nature  of  the  remedies  given  for  the  depriva- 
tion of  either.  This  distinction  rests  at  bottom  upon  the  physical 
difference  between  land,  which  is  immovable  and  indestructible,  and 
goods,  which  are  moveable  and  perishable.  Hence  a  dispossessed  land- 
holder can  always  be  restored  by  process  of  law  to  the  identical  hold- 
ing, from  which  he  has  been  ejected:  while  there  is  no  such  certainty 
of  specific  restitution  in  the  case  of  goods.  For  goods  may  always 
be  taken  out  of  the  jurisdiction,  lost,  or  destroyed ;  when  the  law  can 
give  the  dispossessed  owner  no  remedy  but  pecuniary  compensation. 
Actions  were  therefore  classified  in  English  law,  as  real  or  personal, 
according  to  the  nature  of  the  relief  afforded  thereby.  Real  actions 
were  those  brought  for  the  recovery  of  lands  or  tenements,  wherein 
specific  restitution  was  obtainable  by  process  of  execution  issuing  di- 
rectly against  the  thing  demanded  (in  rem).  Personal  actions  were 
brought  to  enforce  an  obligation  imposed  on  a  man  personally  to  make 
reparation  for  a  breach  of  contract  or  a  wrong ;  in  other  words,  they 
were  brought  to  obtain  pecuniar)^  compensation  for  a  violation  of  right 
— what  the  English  law  calls  damages.  Actions  in  v.'hich  claims  for 
both  kinds  of  relief  were  combined  were  called  mixed  actions.  Not 
every  kind  of  landholding  however  was  recoverable  in  a  real  action. 
From  the  reign  of  Henry  H,  owing  to  the  permanent  establishment 
of  the  King's  Court,  and  the  provision  of  special  remedies  therein  for 
dispossessed  landholders,  all  the  existing  forms  of  landholding  were 
submitted  to  the  classifying  action  of  a  general  judge-made  law.  The 
result  was  that  freeholdings  of  land,  or  free  tenements,  were  the  only 
form  of  property  in  land  admitted  to  be  protected  in  the  King's  Court 
by  real  or  mixed  action.  This  restriction  left  unprotected  in  the  King's 
Court,  and  therefore  without  the  pale  of  property,  the  humbler  form 
of  landholding  known  as  tenure  in  villenage.  Tenure  in  villenage, 
however,  gave  rise  to  the  customary  property  in  land,  which  in  later 
times  obtained  complete  legal  protection  as  copyhold.  But  there  were 
in  early  times  certain  valuable  interests  in  land,  which  fell  short  of 
the  dignity  of  freehold,  without  incurring  the  degradation  of  villenage. 
The  most  important  of  these  were  tenancies  for  a  term  of  years. 
Placed  outside  the  class  of  free  tenements,  they  nevertheless  obtained 
special  legal  protection.  But  they  were  reckoned  as  chattels,  and  thus 
became  the  objects  of  the  same  liberty  of  alienation  and  liability  for 
debt  as  attached  to  the  ownership  of  other  chattels.  Chattel  interests 
in  land  also  came  to  be  completely  assimilated  to  other  chattels  with 
regard  to  the  mode  of  succession  after  death,  passing  to  the  executor  or 
administrator,  not  the  heir. 


Ch.   1)      DISTINCTION  BETWEEN  REAL  AND  PERSONAL  PROPERTY  3 

Now,  as  free  tenements  were  the  only  things  recoverable  in  the 
reahy,  or  specifically  by  real  action,  they  became  known  by  the  name 
of  realty  or  of  real  things ;  while  things  recoverable  in  personal  ac- 
tions were  termed  personalty,  or  personal  things.  And  when  the  word 
realty  had  thus  come  to  denote  the  freehold,  chattel  interests  in  land 
were  given  the  name  of  chattels  real,  because,  it  was  said,  they  con- 
cerned the  realty;  while  moveable  goods  were  distinguished  as  chat- 
tels personal,  "because  for  the  most  part  they  belong  to  the  person 
of  a  man,  or  else"  (which  seems  the  better  reason)  "for  that  tliey 
are  to  be  recovered  by  personal  actions."  In  later  times,  however, 
when  men  began  to  speak  of  all  their  property  or  valuable  rights  as 
their  estate,  and  to  classify  their  estate  as  real  or  personal,  the  lim- 
its of  the  two  classes  of  propert}'  were  determined  rather  by  the  dif- 
ference in  the  mode  of  succession  after  death  than  by  the  nature 
of  the  actions  for  their  recovery.  The  term  real  estate  was  appro- 
priated to  the  realty,  which  passed  to  the  heir,  or  to  real  heredita- 
ments; while  chattels  real,  which  passed  to  the  executor,  were  on 
that  account  placed  in  the  class  of  personal  estate.  Thus  in  modern 
times  what  is  called  personal  property  or  estate  comprises  all  chat- 
tels, which  go  to  the  executor,  be  they  chattels  real,  that  is,  chattel 
interests  in  land,  or  chattels  personal,  namely,  moveable  goods  and 
other  things,  for  the  withholding  of  which  damages  only  are  recover- 
able. > 

1  A.  by  will  left  shares  In  a  waterworks  company  to  B.  The  will  was  in 
proper  form  to  pass  personal  proiiert.v.  but  not  real  property.  Held,  the 
shares  passed  to  B.    Bligh  v.  Brent,  2  X.  &  C.  Ex.  268  (18.37). 

A  statute  provided  that  the  transfer  of  property  to  the  children  of  the  de- 
cedent should  be  exempt  from  a  transfer  tax  except  "personal  property  of  the 
value  of  ten  thousand  dollars."  A.  died  owning  a  lease  for  21  years  worth 
.'?12.000.  It  went  to  B.,  his  son.  Held,  it  was  subject  to  the  tax.  Matter  of 
Althause,  63  App.  Div.  252,  71  N.  Y.  Supp.  445  (1901). 


ACTION   BASED   ON   POSSESSION    OE   OWNERSHIP  (Ch.  2 


CHAPTER  II 

RIGHTS  OF  ACTION  BASED  ON  POSSESSION  OR  ON 
OWNERSHIP 


VVOADSON  V.  NAWTON. 
(Court  of  King's  Bench,  1727.    2  Strange,  777.) 

Trespass  for  taking  and  dispersing  a  load  of  fern  ashes :  the  de- 
fendant pleaded  that  he  was  an  occupier  of  land  in  A.  the  tenants 
whereof  had  right  of  common  and  cutting  fern  on  the  locus  in  quo; 
and  that  the  plaintiff  wrongfully  came  and  cut  fern  and  burnt  it  where- 
upon the  defendant  came  and  scattered  it  about  prout  ei  bene  licuit. 
Demurrer  inde. 

Sed  Tota  Curia  Contra.  For  if  the  plaintiff'  did  him  any  dam- 
age he  has  his  action;  but  after  the  plaintiff'  had  burnt  the  fern  and 
thereby  converted  it  to  his  own  use ;  the  commoner  has  no  right  to 
come  and  disperse  it.    Judicium  pro  quer'. 


SUTTON  V.  BUCK. 
(Court  of  Common  Pleas,  1810.    2  Taunt.  302.) 

[One  Gardiner  owned  a  vessel.  The  vessel  was  wrecked  and  he  sold 
it  by  agreement,  partly  written  and  partly  oral,  to  the  plaintiff'.  A  bill 
of  sale  was  executed  but  it  was  not  properly  attested  nor  was  it  regis- 
tered as  required  by  the  registry  acts.  The  plaintiff"  attempted  with  a 
gang  of  workmen  to  save  the  vessel  but  it  broke  up  and  parts  of  it  were 
carried  to  the  defendant's  land.  These  the  defendant  collected  and  re- 
fused to  deliver  to  the  plaintiff,  but  said  he  should  keep  for  the  rightful 
owner. 

The  plaintiff'  brought  trover  and  was  nonsuited  upon  the  ground  that 
the  registry  of  the  transfer  was  necessary  to  confer  any  title  on  the 
plaintiff. 

Rule  nisi  for  a  new  trial.] 

Mansfield,  C.  J.^  Suppose  a  man  gives  me  a  ship  without  a  reg- 
ular compliance  with  the  register  act,  and  I  fit  it  out  at  £500.  expence, 
see  what  a  doctrine  it  is  that  another  man  may  take  it  from  me,  and  I 
have  no  remedy.    The  only  doubt  on  the  case,  I  think,  arises  from  the 

I  The  opinions  of  Lawrence  and  Chambre,  JJ.,  are  omitted. 


Ch.  2)  ACTION    BASED    ON    POSSESSION   OR   OWNERSHIP  5 

register  act,  lest  if  we  should  decide  that  any  property  passed  by  the 
transfer,  it  should  militate  against  that  act;  and  I  have  never  been 
able  entirely  to  free  my  mind  from  that  doubt ;  but  at  present,  I  think, 
that,  on  the  circumstances,  the  plaintiff  might  maintain  trover.  The 
case  is  this :  here  is  a  ship  stranded :  she  is  certainly  considered  by  all 
parties  as  a  ship  belonging  to  Gardiner :  he  does  not  think  her  worth 
taking  much  trouble  about ;  he  sells  her  to  Sutton,  who  thought  her  an 
advantageous  purchase  at  £600.,  and  who  puts  on  board  eighteen  men 
for  the  purpose  of  getting  the  ship  off,  having  a  hope  that  she  might 
still  be  saved  and  used  as  a  ship.  There  had  been  a  bill  of  sale,  but 
no  registration  ;  but  as  to  the  bill  of  sale,  the  transaction  was  void,  both 
because  there  was  no  written  transfer  proved,  and  no  registration: 
and  it  struck  me  on  the  trial,  that  no  propert)^  passed  thereby  to  the 
plaintiff,  because  the  deliver}'  was  made  to  him  as  to  an  absolute  ven- 
dee. But,  however,  it  is  clear  that  Gardiner  did  deliver  her  to  the 
plaintiff,  with  intent  that  the  plaintiff  should  have  her,  and  keep  her,  he 
was,  in  every  sense  of  the  word,  in  possession  of  the  ship ;  he  being  in 
possession,  the  defendant  saws  and  cuts  some  parts  of  the  wreck ;  not, 
1  suppose,  with  a  view  of  doing  mischief,  but,  as  he  himself  says,  with 
an  intent  to  keep  it  for  the  owner,  whoever  he  should  be.  Now  thus 
the  title  stands,  as  it  was  proved  at  the  trial.  If  mere  possession  will 
make  property,  to  be  sure  here  is  possession,  taking  it  without  refer- 
ence to  the  register  act.  If  Gardiner  had  said,  I  give,  or  I  abandon  the 
ship  to  you,  and  the  plaintiff  had  said,  I  will  endeavour  to  save  her,  and 
had  laid  out  great  sums  of  money,  and  failed,  might  a  stranger  come 
and  take  possession  of  a  part?  it  would  be  a  monstrous  thing  to  say 
that  he  could  so  do.  Here  the  case  is  stronger ;  for  in  all  equity  and 
conscience  the  plaintiff  is  the  vendee,  and  has  paid  his  money.  Now  is 
this  in  any  degree  different  from  other  cases  of  special  property-?  The 
register  acts  have  not  said  that  a  man  shall  not  give  a  ship;  and  it 
seems  strange  to  say  that  a  gift  by  A.  to  B.  should  be  defeated  by  C. 
I  do  not  see  how  the  payment  of  the  money  makes  this  transfer  to  dif- 
fer from  a  gift  in  that  respect :  and  though  the  plaintiff  fails  to  es- 
tablish a  complete  title  to  the  ship,  on  account  of  the  non-compliance 
with  the  register  act,  yet  that  question  is  to  be  disputed  only  between 
Gardiner  and  the  plaintiff' ;  and  it  would  be  a  strange  thing  to  say  that 
the  defendant  can  take  possession.  In  Westerdell  v.  Dale,  the  person 
to  whom  the  ship  was  conveyed,  had  suffered  his  former  partner  to 
continue  to  manage  it ;  so  that  as  to  all  the  world,  the  former  partner 
continued  owner.     Rule  absolute.^ 

2  See  Armory  t.  Delamirie,  1  Strange,  505  (1722),  post,  p.  25 ;  Poole  v.  Sv- 
monds,  1  N.  H.  2S9,  S  Am.  Dec.  71  (1818). 

A.  had  possession  of  X.'s  horse  by  B.'s  permission ;  B.  wrongfully  claiming 
to  be  the  owner.  X.  gave  T.  a  mortga^te  on  the  horse  and  authorized  X.  to 
take  possession.  The  mortgage  was  defective.  Y.  took  possession.  Held,  A. 
cannot  maintain  trover  against  Y.  Sherman  v.  Matthews,  15  Gray  (Mass.) 
508  (1860). 


6  ACTION  BASED   ON   POSSESSION    OR   OWNERSHIP  (Ch.  2 

ROOTH  V.  WILSON. 
(Court  of  King's  Bench,  1817.     1  Barn.  &  AW.  59.) 

Case  against  the  defendant  for  not  repairing  the  fences  of  a  close  ad- 
joining that  of  the  plaintiff,  whereby  a  certain  horse  of  plaintiff,  feed- 
ing in  the  plaintiff's  close,  through  the  defects  and  insufficiencies  of  the 
fences,  fell  into  the  defendant's  close,  and  was  killed.  Plea,  not  guilty. 
At  the  trial  before  Richards,  Baron,  at  the  last  spring  assizes  for  the 
county  of  Nottingham,  it  appeared  that  the  horse  was  the  property  of 
the  plaintiff's  brother,  who  sent  it  to  him  on  the  night  before  the  acci- 
dent ;  that  the  plaintiff  put  it  into  his  stable  for  a  short  time,  and  then 
turned  it,  after  dark,  into  his  close,  where  his  own  cattle  usually  graz- 
ed, and  that  on  the  following  morning  the  horse  was  found  dead  in  the 
close  of  the  defendant,  having  fallen  from  the  one  to  the  other.  The 
liability  to  repair  was  admitted.  Defence,  that  the  plaintiff'  had  not 
such  a  property  in  the  horse  as  to  entitle  him  to  maintain  this  action. 
The  learned  Judge,  however,  suffered  the  cause  to  proceed,  and  the 
jury  found  a  verdict  for  the  plaintiff.  In  Easter  term  last  a  rule  was 
obtained  by  Reader  for  setting  aside  this  verdict  and  having  a  new 
trial.     *     *     * 

Lord  EllEnborough,  C.  J.'  The  plaintiff  certainly  was  a  gratu- 
itous bailee,  but  as  such,  he  owes  it  to  the  owner  of  the  horse  not  to  put 
it  into  a  dangerous  pasture ;  and  if  he  did  not  exercise  a  proper  degree 
of  care  he  would  be  liable  for  any  damage  which  the  horse  might  sus- 
tain. Perhaps  the  horse  might  have  been  safe  during  the  daylight,  but 
here  he  turns  it  into  a  pasture  to  which  it  was  unused  after  dark.  That 
is  a  degree  of  negligence  sufficient  to  render  him  liable :  such  liability 
is  sufficient  to  enable  the  plaintiff  to  maintain  this  action ;  he  has  an 
interest  in  the  integrity  and  safety  of  the  animal,  and  may  sue  for  a 
damage  done  to  that  interest. 

BavlEy,  J.  I  am  entirely  of  the  same  opinion :  the  plaintiff  by 
receiving  the  horse  becomes  accountable.  Case  is  a  possessory  action ; 
the  declaration  merely  states  that  it  was  the  horse  of  the  plaintiff';  if 
this  had  been  an  indictment,  might  it  not  have  been  described  as  the 
horse  of  the  plaintiff?  as  in  the  common  case  of  goods  stolen  from  a 
washerwoman. 

Abbott,  J.  I  think  that  the  same  possession  which  would  enable 
the  plaintiff  to  maintain  trespass,  would  enable  him  to  maintain  this  ac- 
tion. 

Rule  discharged. 

3  The  statement  of  facts  Is  abridged  and  the  opinion  of  Holroyd,  J.,  Is 
omitted. 


Ch.  2)  ACTION   BASED   ON   POSSESSION  OK.  OWNEESHIP  7 

TUTHILL  V.  WHEELER. 

(Supreme  Court  of  New  York,  1S49.     6  Barb.  .362.) 

This  was  an  action  of  trover  to  recover  the  value  of  a  canal  boat.  It 
was  tried  at  the  SulHvan  Circuit,  in  September,  1846,  before  Barculo, 
Circuit  Judge.  It  appeared  upon  the  trial  tliat  on  the  1st  day  of  March, 
1845,  the  plaintiff  entered  into  a  contract  with  the  Delaware  &  Hudson 
Canal  Company  whereby  he  agreed  to  take  charge  of,  and  navigate 
the  boat  in  question,  during  the  season  of  navigation,  in  conformity 
with  the  orders  and  directions  of  the  company,  and  to  hold  himself  ac- 
countable to  the  company  for  any  injury  done  to  the  boat.  The  compa- 
ny, on  their  part,  agreed  to  pay  for  every  ton  of  coal  delivered  at  Ron- 
dout  by  the  boat,  certain  stipulated  prices,  reserving  eight  dollars  on 
each  trip  of  the  boat  towards  the  payment  of  the  value  of  said  boat, 
and  when  the  sums  so  resen-ed  should  amount  to  $225  and  the  interest 
thereon,  a  title  was  to  be  given  to  the  plaintifif  for  the  boat ;  but  in  case 
of  failure  to  pay  for  the  boat,  as  stipulated,  or  the  termination  of  the 
agreement  by  the  company,  whilst  the  value  of  the  boat  and  the  interest 
remained  unpaid,  then  the  sums  reserved  were  to  accrue  to  the  compa- 
ny for  the  use  of  the  boat.  The  company  also  reserved  the  right  to  ter- 
minate the  agreement  at  pleasure,  and  to  take  the  absolute  possession 
of  the  boat,  and  to  transport  it  with  the  cargo  on  board,  to  its  place  of 
•destination,  at  the  plaintiff's  expense.  Under  this  contract  the  plaintiff' 
ran  the  boat  through  the  season,  and  at  the  close  of  navigation  laid  it 
up  in  the  canal,  in  the  town  of  Lumberland.  He  had  paid  during  the 
season,  towards  the  purchase  of  the  boat,  $136.  The  defendant  was 
collector  of  the  town  of  Lumberland,  and  as  such  collector  held  a  tax 
warrant,  by  virtue  of  which  he  was  directed  to  collect  of  the  Delaware 
&  Hudson  Canal  Company  $969,  for  the  tax  assessed  upon  that  part  of 
their  canal,  witliin  the  town  of  Lumberland;  and  by  virtue  of  such 
warrant,  the  defendant  levied  upon,  and  on  the  27th  of  February,  1846, 
sold  the  boat  in  question. 

The  plaintiff'  having  rested,  upon  this  evidence,  the  defendant  moved 
for  a  nonsuit,  upon  two  grounds:  (1)  That  the  plaintiff"  at  the  time  of 
the  seizure  and  sale  of  the  boat,  had  no  such  property  in  the  boat  as 
would  enable  him  to  maintain  his  action  of  trover ;  and  (2)  that  at  the 
time  of  the  seizure  and  sale,  the  boat  was  in  the  actual  possession  of 
the  company  and  was  therefore  liable  to  be  seized  and  sold  for  the  ta.x 
mentioned  in  the  warrant.  The  circuit  judge  decided  that  the  plaintiff' 
could  not  maintain  the  action,  and  directed  a  nonsuit  to  be  entered ; 
which  the  plaintiff'  moved  to  set  aside. 

Harris,  J.^    The  agreement  between  the  Delaware  &  Hudson  Ca- 

*  i'art  of  the  opiuiou  is  omitted. 


8  ACTION   BASED   ON   POSSESSION    OR   OWNERSHIP  (Ch.  2 

nal  Company  and  the  plaintiff  can  scarcely  be  considered  as  amounting 
even  to  a  conditional  sale  of  the  boat.  The  plaintiff,  it  is  true,  was  to 
take  charge  of,  and  navigate,  it  during  the  season,  but  he  was  to  do  so, 
in  conformity  with  the  orders  and  directions  of  the  company,  and  in 
every  respect,  was  to  act  as  their  servant.  They  reserved  the  right  to 
discharge  him  from  their  employment  at  pleasure,  and  to  resume  the 
absolute  possession  of  the  boat ;  and  in  that  case,  they  were  not  even 
to  be  accountable  for  the  $8  per  trip,  retained  under  the  agreement. 
At  the  most,  there  was  but  a  contract  for  a  future  sale,  in  case  the 
plaintiff'  should  continue  to  run  the  boat  long  enough  to  pay  the  price 
stipulated  in  the  agreement. 

I  was  at  first  inclined  to  think  that  even  under  such  an  agreement, 
the  plaintiff'  having  the  boat  in  his  possession,  at  the  time  it  was  seized 
by  the  defendant,  and  the  company  having  retained  out  of  the  plain- 
tiff's earnings  in  running  the  boat  in  their  employ,  towards  the  pur- 
chase of  the  boat,  $136,  and  not  having  elected  to  terminate  the  agree- 
ment, he  had  such  a  special  property  in  the  boat  as  would  sustain  the 
action.  But  upon  reflection,  I  am  convinced  that  this  position  can  not 
be  maintained.  To  bring  the  case  within  the  principle  of  those  cases 
in  which  the  action  has  been  maintained  by  virtue  of  a  special  property, 
even  against  the  general  owner,  the  plaintiff  should  have  an  absolute 
vested  interest  in  the  boat.  But,  by  the  contract,  the  complete  and 
absolute  ownership  remained  in  the  company.  To  maintain  this  form 
of  action,  the  plaintiff  must  show  at  the  time  of  the  conversion  a  right 
of  property,  special  or  general,  in  himself.  This  the  plaintiff  cannot 
do.  It  is  inconsistent  with  the  express  provisions  of  the  agreement  un- 
der which  the  plaintiff  received  the  possession  of  the  boat.  His  pos- 
session was  that  of  a  mere  servant,  restricted  to  use  the  boat  for  the 
company,  and  in  the  manner  prescribed  by  them.  Such  possession,  like 
that  of  the  master  of  any  other  boat  owned  by  the  company,  was  the 
possession  of  the  company.  The  terms  of  the  agreement  are  such  as 
to  exclude  the  idea  that  it  was  intended  that  the  plaintiff  should  have  a 
lien  upon  the  boat  for  the  amount  retained  by  the  company  before  the 
entire  price  was  paid.     *     *     * 

Motion  denied.' 

B  Compare  Moore  v.  Robinson,  2  B.  &  Ad.  817  (1S31) ;  Hampton  v.  Brown, 
13  Irea.  Law  (35  N.  C.)  18  (1S51) ;  Harris  v.  Smith,  3  Serg.  &  R.  (Pa.)  20  (1S17). 


Ch.  2)  ACTION    BASED    ON    POSSESSION    OR   OWNERSHIP  9 

O'NEAL  V.  BAKER. 
(Supreme  Court  of  North  Carolina,  1855.    47  N.  C.  168.) 

Action  of  detinue  tried  before  his  Honor  Judge  Bailey,  at  the  Spring 
Term,  1855,  of  New  Hanover  Superior  Court.  Judgment  for  defend- 
ant.   Appeal. 

Nash,  C.  J.°  The  action  cannot  be  sustained:  To  support  an  ac- 
tion of  detinue,  the  plaintiff  must  have  the  right  of  property  in  the 
thing  claimed,  and  also  the  present  right  of  possession.  A  bailor  may 
sustain  the  action,  because  he  has  a  special  right  of  property,  and  the 
right  of  present  possession.  The  case  discloses  that  the  mother  of  the 
slave,  sued  for,  belonged  to  the  plaintiff  in  the  year  1826,  when  she 
intermarried  with  Thomas  O'Neal.  Before  the  intermarriage,  articles 
of  agreement  were  entered  into  by  the  parties,  and  in  pursuance  of 
them,  the  mother  of  the  slave,  Henry,  sued  for,  together  with  other 
property,  was  conveyed  to  trustees  for  the  use  and  benefit  of  Thomas 
O'Neal  and  his  wife,  the  plaintiff,  and  after  their  death,  for  their 
children.  O'Neal  died  in  the  year  1849,  in  possession  of  the  slaves, 
and  his  widow  continued  in  the  possession  of  Henry  until  he  passed 
into  that  of  the  defendant.  The  sole  question  is,  in  whom  is  the  right 
to  bring  the  action?  The  plaintiff'  relies  on  her  possession,  as  suffi- 
cient to  entitle  her  to  a  recovery  of  the  slave,  against  a  mere  wrong- 
doer.    *     *     * 

In  the  case  in  Strange  [Armory  v.  Delamirie,  1  Strange,  505]  the 
jewel  was  lost  and  found  and  the  owner  was  unknown.  Here  the  slave 
was  neither  lost  nor  found,  and  the  legal  owner  was  knov.n.  Mr. 
Walker,  one  of  the  trustees,  was  alive  and  his  interest  in  the  slave 
was  known — the  legal  title  was  in  him. 

In  reply  it  is  shown  that  Mr.  Walker  had  released  all  his  right,  title 
and  interest  in  and  to  the  slave  in  controversy,  to  the  plaintiff'.  With- 
out inquiring  into  the  eft'ect  of  this  conveyance,  as  it  touches  the  le- 
gal title  to  the  slave,  it  can  have  no  effect  upon  the  question  now  be- 
fore us.  The  deed  was  executed  in  1854,  and  this  action  was  com- 
menced in  1850.  At  the  time  when  the  action  was  brought,  the  legal 
title  was  not  in  the  plaintiff,  but  in  Mr.  Walker,  who,  as  the  surviving 
trustee,  was  alone  competent  to  bring  the  action.  His  Honor  com- 
mitted no  error. 

Per  Curiam.    Judgment  affirmed.' 

8  Part  of  the  opinion  is  omitted. 

7  Contra:  Traylor  v.  Marsliall.  11  Ala.  458  (1847).  A.  had  an  interest  in 
a  parcel  of  land  and  delivered  the  title  deeds  thereof  to  B.,  to  be  liept  until 
requested.  A.  conveyed  the  land  to  X.  B.  refused  to  deliver  the  deeds  to  A. 
Held,  A.  cannot  maintain  detinue  for  the  deeds.  Philips  v.  Robinson,  4  Bing. 
106  (1827). 


10  ACTION   BASED   ON   POSSESSION    OR   OWNERSHIP  (Cll.  2 

WOODSON  V.  PEARCE. 
(Supreme  Court  of  Tennessee,  1858.    5  Sneed  [37  Tenn.]  416.) 

Harris,  J.  This  action  of  replevin  was  commenced  by  Pearce  in 
the  Circuit  Court,  of  Gibson  county,  for  the  recovery  of  certain  slaves. 
On  the  28th  of  November,  1850,  the  following  agreement  was  entered 
into  between  Woodson  and  Pearce,  to  wit:  "I,  James  P.  Woodson, 
this  day  do  lend  to  my  son-in-law,  William  R.  Pearce,  a  negro  girl 
named  Caroline.  The  right  and  title  is  still  vested  in  me  during  my 
natural  life,  and  at  my  death  the  said  William  R.  Pearce  binds  him- 
self to  deliver  up  to  my  e.xecutor  or  administrator  the  aforesaid  negro 
and  her  increase,  or  take  the  aforesaid  negro  and  her  increase  at  a 
fair  valuation." 

At  the  same  time  the  slave  Caroline  was  delivered  by  Woodson  to 
Pearce,  who  continued  his  possession  of  her  until  a  short  time  before 
the  bringing  of  this  suit,  when  the  possession  was  re-taken  by  Wood- 
son without  the  consent  and  against  the  will  of  Pearce.  On  the  trial 
in  the  Circuit  Court,  the  Court  charged  the  jury,  in  substance,  that 
the  "instrument"  above  set  out  "was  an  absolute  gift  of  the  negro  for 
Woodson's  life,  and  vested  Pearce  with  the  title  to  her  and  her  in- 
crease, and  authorized  him  to  recover  in  this  suit,  if  before  the  suit 
commenced  the  slaves  were  taken  out  of  his  possession  by  defendant 
against  his  consent."  The  jury  found  for  the  plaintiff,  and  a  new 
trial  having  been  refused,  the  defendant  has  appealed  in  error  to  this 
Court. 

It  is  now  insisted  that  this  charge  is  erroneous ;  that  this  contract 
is,  by  express  terms,  purely  a  loan,  and  as  such  is  revocable  at  pleasure. 
We  think  that  by  a  fair  construction  of  the  contract,  it  is  clear,  that 
it  was  the  intention  of  Woodson  to  give  the  use  of  the  slave  to  his 
son-in-law,  Pearce,  retaining  the  title  in  himself,  during  his  life,  cou- 
pled with  a  right,  on  the  part  of  Pearce,  at  his  death,  to  make  her  and 
her  increase  absolutely  his  own,  by  accounting  to  his  personal  repre- 
sentative for  them,  "at  a  fair  valuation,"  or  to  surrender  them  up  at 
his  election  to  such  representative. 

That  it  was  an  executed  gift  of  the  use  of  the  slave  for  the  life 
of  the  donor,  and  vested  such  right  in  the  donee  as  could  not  be  revok- 
ed at  pleasure. 

It  is  true  he  uses  the  word  "lend,"  and  the  "right  and  title  is  still 
vested  in  me  during  my  natural  life."  But  when  we  take  the  whole 
instrument  together,  it  is  manifest  that  he  only  intended  to  retain  the 
legal  title,  for  the  use  of  his  son-in-law  during  his  life,  surrendering 
the  possession  and  the  use  of  the  property  to  the  son-in-law,  during 
that  time,  coupled  with  a  right  in  the  son-in-law,  either  to  deliver  the 
slaves,  at  the  death  of  the  donor,  to  his  personal  representative,  or 


Ch.  2)  ACTION    BASED    ON    POSSESSION    OR    OWNERSHIP  11 

make  them  absolutely  his  own,  by  "taking"  them  at  a  fair  valuation. 
Thereby  vesting  such  right  in  the  plaintiff  below  as  would  enable  him 
to  maintain  this  action. 

That  portion  of  the  charge  of  the  Circuit  Judge,  in  which  he  in- 
structs the  jury  that  the  instrument  made  "an  absolute  gift  of  the  ne- 
gro for  Woodson's  life,  and  vested  Pearce  with  the  title  to  her  and 
her  increase,"  is  inaccurate.  He  should  have  told  the  jury  that  it 
conveyed  the  use  of  the  slave  and  her  increase  to  Pearce  during  the 
life  of  Woodson — Woodson  retaining  the  legal  title  to  the  slave  dur- 
ing that  time. 

But  this  verbal  inaccuracy  was  wholly  immaterial  and  could  not 
have  misled  the  jury,  as  Pearce's  right  to  recover  would  have  been 
the  same  in  either  aspect  of  the  question. 

We  think  there  is  no  error  in  the  judgment  and  it  is  affirmed.* 


THE  WINKFIELD. 

(Court  of  Appeal.     [1902]  Prob.  Div.  42.) 

Collins,  M.  R.'  This  is  an  appeal  from  the  order  of  Sir  Francis 
Jeune  dismissing  a  motion  made  on  behalf  of  the  Postmaster-General 
in  the  case  of  The  Winkfield. 

The  question  arises  out  of  a  collision  which  occurred  on  April  5, 
1900,  between  the  steamship  Mexican  and  the  steamship  Winkfield, 
and  which  resulted  in  the  loss  of  the  former  with  a  portion  of  the  mails 
which  she  was  carrying  at  the  time. 

The  owners  of  the  Winkfield  under  a  decree  limiting  liability  to 
i32,514.  17s.  lOd.  paid  that  amount  into  court,  and  the  claim  in 
question  was  one  by  the  Postmaster-General  on  behalf  of  himself  and 
the  Postmasters-General  of  Cape  Colony  and  Natal  to  recover  out 
of  that  sum  the  value  of  letters,  parcels,  etc.,  in  his  custody  as  bailee 
and  lost  on  board  the  Mexican. 

The  case  was  dealt  with  by  all  parties  in  the  Court  below  as  a 
claim  by  a  bailee  who  was  under  no  liability  to  his  bailor  for  the  loss 
in  question,  as  to  which  it  was  admitted  that  the  authority  of  Claridge 


8A.,  a  landowner,  dellverpd  to  B.  an  abstract  of  title,  to  be  kept  by  B.  un- 
til a  proposed  purcbase  by  B.  under  a  contract  of  sale  should  be  either  com- 
pleted or  rescinded.  B.  later  redelivered  the  abstract  to  A.,  for  him  to  look 
at  overuii;ht.  A.  then  refused  to  give  it  back  to  B.,  the  purchase  still  pend- 
ing. Held,  B.  may  maintain  trover  against  A.  for  the  abstract.  Koberts  v. 
Wyatt,  2  Taunt.  268  (ISIO).  As  to  the  measure  of  damages,  see  Benjamin  v. 
Streniple,  13  111.  4GG  (1S51) ;  Pabst  Brewing  Co.  v.  Greenberg,  117  Fed.  135, 
55  C.  C.  A.  151  (1902). 

9  Parts  of  the  opinion  of  Collins,  M.  R.,  are  omitted. 


12  ACTION   BASED   ON    POSSESSION    OR    OWNERSHIP  (Ch.  2 

V.  South  Staffordshire  Tramway  Co.  ([1892]  1  O.  B.  422)  was  con- 
clusive, and  the  President  accordingly,  without  argument  and  in  defer- 
ence to  that  authority,  dismissed  the  claim.  The  Postmaster-General 
now  appeals. 

The  question  for  decision,  therefore,  is  whether  Claridge's  Case 
was  well  decided.  I  emphasize  this  because  it  disposes  of  a  point 
which  was  faintly  suggested  by  the  respondents,  and  which,  if  good, 
would  distinguish  Claridge's  Case,  namely,  tliat  the  applicant  was 
not  himself  in  actual  occupation  of  the  things  bailed  at  the  time  of  the 
loss.  This  point  was  not  taken  below,  and  having  regard  to  the 
course  followed  by  all  parties  on  the  hearing  of  the  motion,  I  think  it 
is  not  open  to  the  respondents  to  make  it  now,  and  I  therefore 
deal  with  the  case  upon  the  footing  upon  which  it  was  dealt  with  on 
the  motion,  namely,  that  it  is  covered  by  Claridge's  Case.  I  assume, 
therefore,  that  the  subject-matter  of  the  bailment  was  in  the  custody 
of  the  Postmaster-General  as  bailee  at  the  time  of  the  accident.  For 
the  reasons  which  I  am  about  to  state  I  am  of  opinion  that  Claridge's 
Case  was  wrongly  decided,  and  that  the  law  is  that  in  an  action  against 
a  stranger  for  loss  of  goods  caused  by  his  negligence,  the  bailee  in 
possession  can  recover  the  value  of  the  goods,  although  he  would  have 
had  a  good  answer  to  an  action  by  the  bailor  for  damages  for  the  loss 
of  the  thing  bailed. 

It  seems  to  me  that  the  position,  that  possession  is  good  against 
a  wrongdoer,  and  that  the  latter  cannot  set  up  the  jus  terlii  unless  he 
claims  under  it,  is  well  established  in  our  law,  and  really  concludes  this 
case  against  the  respondents.  As  I  shall  shew  presently,  a  long  series 
of  authorities  establishes  this  in  actions  of  trover  and  trespass  at  the 
suit  of  a  possessor.  And  the  principle  being  the  same,  it  follows  that 
he  can  equally  recover  the  whole  value  of  the  goods  in  an  action  on 
the  case  for  their  loss  through  the  tortious  conduct  of  the  defendant. 
I  think  it  involves  this  also,  that  the  wrongdoer  who  is  not  defending 
under  the  title  of  the  bailor  is  quite  unconcerned  with  what  the  rights 
are  between  the  bailor  and  bailee,  and  must  treat  the  possessor  as 
the  owner  of  the  goods  for  all  purposes  quite  irrespective  of  the 
rights  and  obligations  as  between  him  and  the  bailor. 

I  tliink  this  position  is  well  established  in  our  law,  though  it  may 
be  that  reasons  for  its  existence  have  been  given  in  some  of  the  cases 
which  are  not  quite  satisfactory.  I  think  also  that  the  obligation  of 
the  bailee  to  the  bailor  to  account  for  what  he  has  received  in  re- 
spect of  the  destruction  or  conversion  of  the  thing  bailed  has  been 
admitted  so  often  in  decided  cases  that  it  caimot  now  be  questioned; 
and,  further,  I  think  it  can  be  shewn  that  the  right  of  the  bailee  to 
recover  cannot  be  rested  on  the  ground  suggested  in  some  of  the  cases, 
namely,  that  he  was  liable  over  to  the  bailor  for  the  loss  of  the  goods 
converted  or  destroyed.     It  cannot  be  denied  that  since  the  case  of 


Ch.  2)  ACTION    BASED    ON    POSSESSION    OR    OWNERSHIP  13 

Armory  v.  Delamirie  (1  Str.  505),  not  to  mention  earlier  cases  from 
the  Year  Books  onward,  a  mere  finder  may  recover  against  a  wrong- 
doer the  full  value  of  the  thing  converted.  That  decision  involves 
the  principle  that  as  between  possessor  and  wrongdoer  the  presump- 
tion of  law  is,  in  the  words  of  Lord  Campbell,  in  JefTries  v.  Great 
Western  Ry.  Co.  (5  E.  &  B.  802,  806),  "that  the  person  who  has 
possession  has  the  property."  *  *  *  Therefore  it  is  not  open  to 
the  defendant,  being  a  wrongdoer,  to  inquire  into  the  nature  or  lim- 
itation of  the  possessor's  right,  and  unless  it  is  competent  for  him 
to  do  so  the  question  of  his  relation  to,  or  liability  towards,  the  true 
owner  cannot  come  into  the  discussion  at  all ;  and,  therefore,  as 
between  those  two  parties  full  damages  have  to  be  paid  without  any 
further  inquiry.  The  extent  of  the  liability  of  the  finder  to  the  true 
owner  not  being  relevant  to  the  discussion  between  him  and  the  wrong- 
doer, the  facts  which  would  ascertain  it  would  not  have  been  ad- 
missible in  evidence,  and  therefore  the  right  of  the  finder  to  recover 
full  damages  cannot  be  made  to  depend  upon  the  extent  of  his  liabil- 
ity over  to  the  true  owner.  To  hold  otherwise  would,  it  seems  to  me,, 
be  in  efifect  to  permit  a  wrongdoer  to  set  up  a  jus  tertii  under  which 
he  cannot  claim.  But,  if  this  be  the  fact  in  the  case  of  the  finder,  why 
should  it  not  be  equally  the  fact  in  the  case  of  a  bailee?  Why,  as 
against  a  wrongdoer,  should  the  nature  of  the  plaintiff's  interest  in 
the  thing  converted  be  any  more  relevant  to  the  inquiry,  and  therefore 
admissible  in  evidence,  than  in  the  case  of  a  finder?  It  seems  to  me 
that  neither  in  one  case  nor  the  other  ought  it  to  be  competent  for 
the  defendant  to  go  into  evidence  on  that  matter.     *     *     * 

Holmes,  C.  J.,  in  his  admirable  lectures  on  the  Common  Law,  in 
the  chapter  devoted  to  bailments,  traces  the  origin  of  the  bailee's  right 
to  sue  and  recover  the  whole  value  of  chattels  converted,  and  arrives 
at  the  clear  conclusion  that  the  bailee's  obligation  to  account  arose  from 
the  fact  that  he  was  originally  the  only  person  who  could  sue,  though 
afterwards  by  an  extension,  not  perhaps  quite  logical,  the  right  to  sue 
was  conceded  to  the  bailor  also.  He  says  at  p.  167:  "At  first  the  bailee 
was  answerable  to  the  owner  because  he  was  the  only  person  who  could 
sue;  now  it  was  said  he  could  sue  because  he  was  answerable  to  the 
owner."  And  again  at  p.  170:  "The  inverted  explanation  of  Beau- 
manoir  will  be  remembered,  that  tlie  bailee  could  sue  because  he  was 
answerable  over,  in  place  of  the  original  rule  that  he  was  answer- 
able over  so  strictly  because  only  he  could  sue."  This  inversion,  as 
he  points  out,  is  traceable  through  the  Year  Books,  and  has  survived 
into  modern  times,  though,  as  he  shews,  -it  has  not  been  acted  upon. 
Pollock  and  Maitland's  History  of  the  English  Law,  vol.  2,  p.  170, 
puts  the  position  thus :  "Perhaps  we  come  nearest  to  historical  truth  if 
we  say  that  between  the  two  old  rules  there  was  no  logical  priority. 
The  bailee  had  the  action  because  he  was  liable,  and  was  liable  because 


14  ACTION    BASED   ON    POSSESSION    OK   OWNERSHIP  (Cll.  2 

he  had  the  action."  It  may  be  that  in  early  times  the  obligation  of 
the  bailee  to  the  bailor  was  absolute,  that  is  to  say,  he  was  an  in- 
surer. But  long  after  the  decision  of  Coggs  v.  Bernard  (1704)  [2  Ld. 
Ray.  909],  which  classified  the  obligations  of  bailees,  the  bailee  has, 
nevertheless,  been  allowed  to  recover  full  damages  against  a  wrong- 
doer, where  the  facts  would  have  afforded  a  complete  answer  for 
him  against  his  bailor.  The  cases  above  cited  are  instances  of  this. 
In  each  of  them  the  bailee  would  have  had  a  good  answer  to  an  ac- 
tion by  his  bailor ;  for  in  none  of  them  was  it  suggested  that  the  act 
of  the  wrongdoer  was  traceable  to  negligence  on  the  part  of  the  bailee. 
I  think,  therefore,  that  the  statement  drawn,  as  I  have  said,  from 
the  Year  Books  may  be  explained,  as  Holmes,  C.  J.,  explains  it,  but 
whether  that  be  the  true  view  of  it  or  not,  it  is  clear  that  it  has  not 
been  treated  as  law  in  our  Courts.  *  *  *  fhe  bailee's  right  to 
recover  has  been  affirmed  in  several  American  cases  entirely  without 
reference  to  the  extent  of  the  bailee's  liability  to  the  bailor  for  the 
tort,  though  his  obligation  to  account  is  admitted — see  them  referred 
to  in  the  passages  cited,  and  in  particular  see  Ullman  v.  Barnard  (1856) 
[7i  Mass.  (7  Grav)  5541  ;  Parish  v.  Wheeler  fl860)  [22  N.  Y.  494]  ; 
White  v.  Webb  [iS  Conn.  302].  The  case  of  Rooth  v.  Wilson,  1  B.  & 
A.  59,  is.  a  clear  authority  that  the  right  of  the  bailee  in  possession 
to  recover  against  a  wrongdoer  is  the  same  in  an  action  on  the  case 
as  in  an  action  of  trover,  if  indeed  authority  were  required  for  what 
seems  obvious  in  point  of  principle.  *  *  *  Therefore,  as  I  said 
at  the  outset,  and  as  I  think  I  have  now  shewn  by  authority,  the  root 
principle  of  the  whole  discussion  is  that,  as  against  a  wrongdoer,  pos- 
session is  title.  The  chattel  that  has  been  converted  or  damaged  is 
deemed  to  be  the  chattel  of  the  possessor  and  of  no  other,  and  there- 
fore its  loss  or  deterioration  is  his  loss,  and  to  him,  if  he  demands 
it,  it  must  be  recouped.  His  obligation  to  account  to  the  bailor  is  really 
not  ad  rem  in  the  discussion.  It  only  comes  in  after  he  has  carried 
his  legal  position  to  its  logical  consequence  against  a  wrongdoer,  and 
serves  to  soothe  a  mind  disconcerted  by  the  notion  that  a  person  who 
is  not  himself  the  complete  owner  should  be  entitled  to  receive  back 
the  full  value  of  the  chattel  converted  or  destroyed.  There  is  no 
inconsistency  between  the  two  positions;  the  one  is  the  complement 
of  the  other.  As  between  the  bailee  and  stranger  possession  gives 
title — that  is,  not  a  limited  interest,  but  absolute  and  complete  own- 
ership, and  he  is  entitled  to  receive  back  a  complete  equivalent  for  the 
whole  loss  or  deterioration  of  the  thing  itself.  As  between  bailor 
and  bailee  the  real  interests  of  each  must  be  inquired  into,  and,  as 
the  bailee  has  to  account  for  the  thing  bailed,  so  he  must  account  for 
that  which  has  become  its  equivalent  and  now  represents  it.  What  he 
has  received  above  his  own  interest  he  has  received  to  the  use  of  his 
bailor.    The  wrongdoer,  having  once  paid  full  damages  to  the  bailee. 


Ch.  2)  ACTION   BASED   ON   POSSESSION   OK   OWNERSHIP  15 

has  an  answer  to  any  action  by  the  bailor.  See  Com.  Dig.  Trespass,  B. 
4,  citing  Roll.  551,  1.  31,  569,  1.  22,  Story  on  Bailments,  9th  Ed.  § 
352,  and  the  numerous  authorities  there  cited.     *     *     * 

Stirling  and  Mathew,  L.  JJ.,  concurred. 

Appeal  allowed.^" 


BARWICK  V.  BARWICK  et  al. 
(Supreme  Court  of  North  Carolina,  1850.    33  N.  C.  SO.) 

Pearson,  J.  Benjamin  Sutton,  by  his  will,  gave  a  number  of  slaves 
to  his  wife,  Sarah  Sutton,  for  her  life :  and  at  her  death  to  be  divided 
among  his  four  daughters,  one  of  whom  was  Winifred,  the  wife  of 
Joshua  Barwick,  one  of  the  defendants.  Joshua  Barwick  and  his  wife 
sold  their  interest  in  said  slaves  to  the  plaintiff,  who  took  four  of  them 
into  his  possession.  Afterwards,  the  said  Joshua  sold  the  two  slaves 
sued  for  to  Wood,  who,  with  the  assistance  of  the  other  defendant, 
Brown,  took  them  from  the  possession  of  the  plaintiff,  and  sent  them 
out  of  the  State ;  whereupon  this  action  of  trover  was  brought. 

The  case  made  up  by  his  Honor,  states  that  it  was  not  proven  that 
Sarah  Sutton  was  dead.  The  plaintiff  insisted  that  he  was  entitled  to 
recover  on  two  grounds:  1st,  because  he  had  the  title;  and  2d,  be- 
cause he  had  the  possession,  and  could  recover  against  wrongdoers. 

His  Honor  charged,  that  the  plaintiff'  could  not  recover  on  the  first 
ground,  because  it  was  not  proved  that  Sarah  Sutton  was  dead ;  but  he 
charged,  on  the  second  ground,  that,  if  the  plaintiff  was  in  possession 
of  the  slaves,  and  the  defendants  took  them,  and  sent  them  out  of  the 
country,  he  was  entitled  to  recover  their  value,  with  interest  from  the 
time  of  the  conversion :  as  tlie  defendants  were  wrongdoers  and  had 
shown  no  title.  There  was  a  verdict  for  the  plaintiff,  and,  from  the 
judgment  thereon,  the  defendants  appealed. 

The  defendants  excepted  to  the  charge  of  his  Honor,  upon  the  second 
ground,  and  we  think  the  exception  well  founded. 

The  bare  possession  is  sufficient  to  maintain  an  action  of  trespass 
against  a  wrongdoer,  for  the  gist  of  that  action  is  an  injury  to  the  pos- 
session, and  the  measure  of  damage  is  not  the  value  of  the  property, 
but  the  injury  done  to  the  plaintiff,  by  having  his  possession  disturbed. 

In  trover,  the  injury  done  by  the  wrongful  taking  is  waived,  and  the 
plaintiff  supposes  he  has  lost  the  property,  and  alleges  that  the  defend- 
ant found  it  and  wrongfully  converted  it  to  his  own  use.  So  the  gist  of 
the  action  is  not,  that  the  defendant,  having  found  the  property,  took 

10  See,  for  various  applications  of  the  rule  of  the  Winkfield  Case,  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Biggs,  50  Arl<.  109,  6  S.  W.  724  (1SS7) ;  Atkins  v.  Moore, 
S2  111.  1240  aST6) ;  Brewster  v.  Warner,  136  Mass.  57,  49  Am.  Rep.  5  (1883) ; 
Chamberlain  v.  West,  37  Minn.  54,  33  N.  W.  114  (1887);  Guttner  v.  Pacilic 
Steam  Whaling  Co.  (D.  C.)  9«  Fed.  G17  (1899). 


16  ACTION    BASED   ON   POSSESSION    OE   OWNERSHIP  (Ch.  2 

it  into  his  possession,  but  that,  after  doing  so,  he  wrongfully  converted  it 
to  his  own  use,  and  the  measure  of  damage  is  the  value  of  the  property. 
It  is  true,  that  when  nothing  appears,  but  the  fact  that  the  defendant 
took  the  property  out  of  the  possession  of  the  plaintiti'  and  converted 
it  to  his  own  use,  trover  will  lie.  For  the  possession  of  personal  prop- 
erty is  prima  facie  evidence  of  title,  and  in  the  absence  of  any  proof  to 
rebut  this  presumption,  the  person  in  possession  is  taken  to  be  the 
owner  and  can  recover  the  full  value.  But,  if  it  appears  on  the  trial, 
that  the  plaintiff,  although  in  possession,  is  not  in  fact  the  owner,  and 
that  the  property  belongs  to  a  third  person,  the  presumption  of  title,  in- 
ferred from  the  possession,  is  rebutted ;  and  it  would  be  manifestly 
wrong  to  allow  the  plaintiff  to  recover  the  value  of  the  property.  For 
the  real  owner  may  forthwith  bring  trover  against  the  defendant,  and 
force  him  to  pay  the  value  a  second  time,  and  the  fact  that  he  had  paid 
it  in  a  former  suit  would  be  no  defense.  When  trover  is  brought  and 
the  defendant  satisfies  the  judgment,  he  pays  the  value  of  the  property, 
and  the  title  is  vested  in  him  by  a  judicial  transfer,  because  he  has  paid 
the  price.  Consequently,  trover  can  never  be  maintained  unless  a  sat- 
isfaction of  the  judgment  will  have  the  effect  of  vesting  a  good  title  in 
the  defendant,  except  when  the  property  is  restored,  and  the  conver- 
sion was  temporary.  Accordingly,  it  is  well  settled  as  the  law  of  this 
State,  that  to  maintain  trover,  the  plaintiff  must  show  title  and  a  pos- 
session, or  a  present  right  of  possession.  Hostler's  Administrators  v. 
Scull,  3  N.  C.  (2  Haywood)  139;  Id.,  1  N.  C.  (Taylor)  152,  183,  1  Am. 
Dec.  583 ;  Laspevre  v.  McFarland,  4  N.  C.  (N.  C.  T.  R.)  187 ;  Andrews 
V.  Shaw,  15  N.  C.  (4  Dev.)  70. 

There  are  cases  in  the  English  books,  and  in  the  reports  of  some  of 
our  sister  states  to  the  contrary ;  but  we  must  be  allowed  to  say,  that 
the  doctrine  of  our  courts  is  fully  sustained,  by  the  reason  of  the  thing, 
and  is  most  consonant  with  the  peculiar  principles  of  this  action.  The 
cases  differing  from  our  decision,  are  all  based  upon  a  misapprehension 
of  the  principle  laid  down  in  the  leading  case,  Delimirie  v.  Armory.  In 
that  case  the  jewel  was  lost,  and  was  found  by  the  plaintiff,  a  chimney 
sweeper.  He  had  a  right  to  take  it  into  possession,  and  became  the 
owner,  by  the  title  of  occupancy,  except  in  the  event  of  the  true  owner 
becoming  known.  The  former  owner  of  the  jewel  was  not  known,  and 
it  was  properly  decided  that  the  finder  might  maintain  trover  against 
the  defendant  to  whom  he  had  handed  it  for  inspection,  and  who  re- 
fused to  restore  it. 

But  the  result  of  that  case  would  have  been  very  different,  if  the 
owner  had  been  known.  The  defendant  could  then  have  said  to  the 
plaintiff,  you  have  no  right  to  make  me  pay  you  the  value,  when  I  must 
forthwith  deliver  up  the  property  to  the  owner,  or  else  pay  him  the 
value  a  second  time. 

The  distinction  between  that  case,  when  the  possessor  was  the  only 
known  owner,  and  the  ordinary  case  of  one,  who  himself  has  the  pos- 


Ch.  2)  ACTION    BASED   ON   POSSESSION    OR   OWNERSHIP  17 

session  wrongfully  and  sues  another  wrongdoer  for  interfering  with 
his  possession,  the  true  owner  being  known  and  standing  by,  ready  to 
sue  for  the  property,  is  as  clear  as  daylight. 

In  this  case,  for  instance,  as  the  facts  appeared  on  the  trial,  the  plain- 
tiff was  in  the  wrongful  possession,  which  was  disturbed  by  the  defend- 
ant, and  for  that  injury  he  had  a  right  to  recover  in  trespass.  But 
Sarah  Sutton  was  known  as  the  true  owner,  and  had  a  right  to  demand 
her  property  of  the  defendants,  or  else  to  recover  its  value,  and  they 
could  not  protect  themselves  by  showing  that  they  had  paid  the  full 
value  to  the  plaintiff,  under  the  coercion  of  a  judgment  and  execution. 
This  result  would  seem,  by  the  reductio  ad  absurdum,  to  show  that  the 
inference  from  the  case  of  Delimirie  v.  Armory,  that  trover  can  be 
maintained  against  a  wrongdoer  by  one  not  [sic]  having  a  naked  pos- 
session, when  the  true  owner  is  known,  is  contrary  to  good  sense. 
That  which  is  not  good  sense  is  not  good  law. 

The  judgment  must  be  reversed  and  there  must  be  a  venire  de  novo. 


ANONYMOUS. 
(Court  of  King's  Bencb,  1472.     T.  B.  12  Edw.  IV,  8.  pi.  20.) 

Choke.  If  I  loan  one  my  horse  to  ride  to  York  and  he  rides  else- 
where I  shall  have  an  action  of  trespass."     *     *     * 

Brian.  In  your  case  of  the  horse  if  he  to  whom  I  loan  it  rides 
elsewhere  the  party  will  have  an  action  on  tlie  case  but  not  a  general 
action  of  trespass. 


ANONYMOUS. 

(Court  of  Common  Pleas,  15S7.    Moore,  248.) 

A  draper  having  a  servant  to  sell  goods  in  his  shop,  the  servant  took 
cloths  and  converted  them  to  his  own  use,  and  it  was  adjudged  that 
trespass  vi  et  armis  lies  because  he  was  only  a  servant  and  had  posses- 
sion of  the  cloths  as  a  servant,  and  sakept  the  possession  of  his  master. 
And  therefore  if  a  shepherd  or  a  butler  steal  sheep  or  plate  this  was 
felony  at  the  common  law,  so  3  H.  7,  and  21  H.  7,  but  if  one  delivers 
an  article  to  his  servant  to  deliver  over  and  he  takes  it  away,  that  is  not 
felony  because  he  has  a  special  property  upon  which  he  can  maintain 
trespass  upon  the  taking  out  of  his  possession.  And  Anderson  said 
that  in  all  cases  where  the  servant  has  neither  general  nor  special  prop- 
erty trespass  lies;   otherwise  with  a  bailee.'^ 

11  Ace:    Co.  Lit.  57a.     See  Lee  v.  Atkinson,  Cro.  Jac.  236  (1610). 

12  See  Bloss  v.  Holman,  Owen,  52  (1587),  apparently  the  same  case. 

Big. Pebs. Prop. — 'Z 


18  ACTION   BASED   ON   POSSESSION   OR   OWNERSHIP  (Ch.  2 

WARD  V.  MACAULEY  et  al. 
(Court  of  King's  Beneb,  1791.     4  Term  R.  4S9.) 

Tlie  plaintiff  was  the  landlord  of  a  house,  which  he  let  to  Lord 
Montfort  ready  furnished ;  and  the  lease  contained  a  schedule  of  the 
furniture.  An  execution  was  issued  against  Lord  Montfort,  under 
which  the  defendants,  sheriff  of  Middlesex,  seized  part  of  the  fur- 
niture, notwithstanding  the  officer  had  notice  that  it  was  the  property 
of  the  plaintiff'.  For  this  the  plaintiff  brought  an  action  of  trespass 
against  the  defendants.  At  the  trial  Lord  Kenyon  thought  that  tres- 
pass would  not  lie,  and  that  the  plaintiff  should  have  brought  trover; 
a  verdict,  however,  was  taken  for  the  plaintiff  for  value  of  the 
goods  with  liberty  to  the  defendants  to  move  to  enter  up  a  nonsuit, 
if  this  Court  should  be  of  opinion  that  the  plaintiff'  could  not  recover 
in  this  form  of  action. 

Mingay  obtained  a  rule  for  that  purpose  on  a  former  day ;  against 
which 

Erskine  now  shewed  cause. 

Lord  Kenyon,  C.  J.  The  distinction  between  the  actions  of  tres- 
pass and  trover  is  well  settled ;  the  former  is  founded  on  possession, 
the  latter  on  property.  Here  the  plaintiff'  had  no  possession ;  his  rem- 
edy was  by  an  action  of  trover  founded  on  his  property  in  the  goods 
taken.  In  the  case  put  of  a  carrier,  there  is  a  mixed  possession :  actual 
possession  in  the  carrier,  and  an  implied  possession  in  the  owner. 

Bui.LER,  J.  The  carrier  is  considered  in  law  as  the  servant  of  the 
owner,  and  the  possession  of  the  servant  is  the  possession  of  the 
master. 

/ER  Curiam.    Rule  absolute.' ' 


GORDON  V.  HARPER. 
(Court  of  King's  Bench,  1790.     7  Term.  R.  9.) 

In  trover  for  certain  goods,  being  household  furniture,  a  verdict  was 
found  for  the  plaintiff,  subject  to  the  opinion  of  this  Court  on  the 
following  case:  On  the  1st  October  1795,  and  from  thence  until  the 
seizing  of  the  goods  by  the  defendant,  as  aftermentioned,  Mr.  Biscoe 
was  in  possession  of  a  mansion-house  at  Shoreham  and  of  the  goods 


ISA.  chartered  a  boat  to  B.  for  a  detinite  term.  The  boat  was  wrongfully 
attached  by  C.  on  e.xecution.  Held,  A.  cannot  maintain  trespass  against  C. 
Muggrldge  v.  Eveleth,  9  Mete.  (Mass.)  233  (1S45). 


Ch.  2)  ACTION    BASED   OX    POSSESSION    OR   OWNERSHIP  19 

in  question,  being  the  furniture  of  the  said  house,  as  tenant  of  the 
house  and  furniture,  to  the  plaintiff  under  an  agreement  made  be- 
tween the  plaintiff'  and  Mr.  Biscoe,  for  a  term  which  at  the  trial  of 
this  action  was  not  expired.  The  goods  in  question  were  on  the  24th 
of  October  taken  in  execution  by  the  defendant,  then  sheriff  of  the 
county  of  Kent,  by  virtue  of  a  writ  of  testatum  fieri  facias  issued  on  a 
judgment  at  the  suit  of  J.  Broomhead  and  others,  executors  of  J. 
Broomhead  deceased  against  one  Borret,  to  whom  the  goods  in  ques- 
tion had  belonged,  but  which  goods,  previous  to  the  agreement  be- 
tween the  plaintiff  and  Mr.  Biscoe,  had  been  sold  by  Borret  to  tlie 
plaintiff.  The  defendant  after  the  seizure  sold  the  goods.  The  ques- 
tion is,  whether  the  plaintiff'  is  entitled  to  recover  in  an  action  of  trover. 
Lord  Kexvox,  C.  J.'*  The  only  point  for  the  consideration  of 
the  Court  in  the  case  of  Ward  v.  Macauley  was,  whether  in  a  case 
like  the  present,  the  landlord  could  maintain  an  action  of  trespass 
against  the  sheriff  for  seizing  goods,  let  with  a  house,  under  an  execu- 
tion against  the  tenant;  and  it  was  properly  decided  that  no  such  ac- 
tion could  be  maintained.  What  was  said  further  by  me  in  that  case, 
that  trover  was  the  proper  remedy,  was  an  extrajudicial  opinion,  to 
which  upon  further  consideration  I  cannot  subscribe.  The  true  ques- 
tion is,  whether  when  a  person  has  leased  goods  in  a  house  to  another 
for  a  certain  time,  whereby  he  parts  with  the  right  of  possession  dur- 
ing the  term  to  the  tenant,  and  has  only  a  reversionary  interest,  he  can 
notwithstanding  recover  the  value  of  the  whole  property  pending  the 
existence  of  the  term  in  an  action  of  trover.  The  very  statement  of 
the  proposition  affords  an  answer  to  it.  If,  instead  of  household  goods, 
the  goods  here  taken  had  been  machines,  used  in  manufacture,  which 
had  been  leased  to  a  tenant,  no  doubt  could  have  been  made  t)ut  that 
the  sheriff  might  have  seized  them  under  an  execution  against  the 
tenant,  and  the  creditor  would  have  been  entitled  to  the  beneficial 
use  of  the  property  during  the  term ;  the  difference  of  the  goods  then 
cannot  varj'  the  law.  The  cases  which  have  been  put  at  the  bar  do 
not  apply:  the  one  on  which  the  greatest  stress  was  laid  was  that 
of  a  tenant  for  years  of  land  whereon  timber  is  cut  down,  in  which 
case  it  was  truly  said,  that  the  owner  of  the  inheritance  might  maintain 
trover  for  such  timber,  notwithstanding  the  lease.  But  it  must  be  re- 
membered that  the  only  right  of  the  tenant  is  to  the  shade  of  the 
tree  when  growing,  and  by  the  very  act  of  felling  it  his  right  is  ab- 
solutely determined ;  and  even  then  the  property  does  not  vest  in 
his  immediate  landlord;  for  if  he  has  only  an  estate  for  life,  it  will 
go  over  to  the  owner  of  the  inheritance.  Here  however  the  tenant's 
right  of  possession  during  the  term  cannot  be  devested  by  anv  wrongful 
act,  nor  can  it  thereby  be  revested  in  the  landlord.     I  forbear  to  de- 

1*  The  opinions  of  Ashhurst,  Grose,  and  Lawrence,  JJ.,  are  omitted. 


20  ACTION   BASED   ON   POSSESSION   OR   OWNERSHIP  (Ch.  2 

liver  any  opinion  as  to  what  remedy  the  landlord  has  in  this  case,  not 
being  at  present  called  upon  so  to  do ;  but  it  is  clear  that  he  cannot 
maintain  trover. 

[The  other  Justices  concurred.]     Postea  to  the  defendant.'' 


LOTAN  V.  CROSS. 

(Nisi  Prius,  1810.     2  Camp.  4G4.) 

Trespass  for  running  against  the  plaintiff's  chaise. 

It  appeared  that  the  plaintiff,  a  stable-keeper,  was  owner  of  the 
chaise;  but  that  when  the  injury  was  done,  it  was  in  the  possession 
of  one  Brown,  a  friend  of  his,  whom  he  had  permitted  to  use  it. 

The  objection  being  taken,  that  trespass  could  not  be  maintained  by 
the  plaintiff  under  these  circumstances, 

Lord  ELLENBououcn  said :  The  property  is  proved  to  be  in  the 
plaintiff',  and  prima  facie  the  thing  is  to  be  considered  in  his  legal 
possession,  whoever  may  be  the  actual  occupier.  Shew  a  letting  for  a 
certain  time  to  Brown,  and  the  possession  would  be  in  him;  but  a 
mere  gratuitous  permission  to  a  third  person  to  use  a  chattel  does  not, 
in  contemplation  of  law,  take  it  out  of  the  possession  of  the  owner, 
and  he  may  maintain  trespass  for  any  injury  done  to  it  while  it  is  so 
used. 

The  witness  stated,  that  the  defendant  seemed  to  have  no  intention 
of  running  his  carriage  against  the  plaintiff's  chaise;  and  that  die  ac- 
cident appeared  to  arise  entirely  from  the  negligent  manner  in  which 
the  defendant  was  driving. 

Park  thereupon  objected  that  the  action  should  have  been  case  and 
not  trespass. 

Lord  Ellenborough.  The  injury  to  the  plaintiff  being  immediate 
from  the  act  done  by  the  defendant,  it  was  settled  in  Leame  v.  Bray, 
3  East.  393,  that  trespass  is  the  proper  remedy,  and  that  the  defend- 
ant's intentions  were  immaterial. 

Verdict  for  the  plaintiff'. 

Park,  in  the  ensuing  term,  moved  for  a  new  trial,  on  the  ground 
that  the  action  was  misconceived;  and  stated,  that  Leame  v.  Bray 
had  been  overruled  by  tlie  court  of  C.  P.  in  Huggett  v.  Montgomery, 
2  N.  Rep.  446. 

Cur.  If  we  are  desired  to  review  the  case  of  Leame  v.  Bray,  the 
matter  should  be  brought  before  us  in  a  dift'erent  shape,  than  a  motion 

>5  A.,  being  indebted  to  B.,  sold  goods  to  B.  in  good  faith,  covenanting  to 
pay  the  debt  on  demand  and  with  a  proviso  for  redemption  on  such  payment ; 

A.  to  be  allowed  to  retain  possession  of  the  goods  until  such  demand  and  a 
default.    X.  levied  on  the  goods  as  A.'s.     Held,  admitting  the  levy  wrongful, 

B.  cannot  maintain  trover.     Bradley  v.  Copley,  1  C.  B.  085  (1845). 


Ch.  2)  ACTION    BASED    ON    POSSESSION    OR    OWNERSHIP  21 

for  a  new  trial.    We  do  not  entertain  so  slight  an  opinion  of  our  own 
judgment,  as  to  allow  it  to  be  thus  canvassed.    We  will  wait  for  some 
case  where  the  question  is  raised  upon  the  record,  and  may  be  car- 
ried farther. 
Rule  refused.'" 


LOESCHMAN  v.  MACHIN. 
(Court  of  King's  Bench,  1818.    2  Starkie,  .311.) 

This  was  an  action  of  trover,  brought  to  recover  tlie  value  of  two 
piano-fortes. 

The  plaintiff  was  a  maker  of  piano-fortes,  and  the  defendant  was 
an  auctioneer.  The  plaintiff  had  lent  one  of  the  pianos,  the  larger, 
to  a  person  of  the  name  of  Brown,  whose  wife  was  a  musical  teach- 
er, on  hire,  for  which  Brown  was  to  pay  at  the  rate  of  18s.  per  month, 
if  he  kept  it  for  the  whole  year ;  and  if  for  a  less  period,  he  was  to  pay 
a  guinea  per  month.  With  respect  to  the  other  piano,  it  did  not  ap- 
pear very  clearly  on  what  terms  it  had  been  delivered  by  the  plain- 
tiff to  Brown,  whether  upon  hire,  or  that  he  might  dispose  of  it  for 
the  plaintiff'.  Brown  had  sent  both  these  pianos  to  the  defendant,  to 
be  sold  by  auction,  and  he,  upon  the  plaintiff's  application  to  deliver 
the  pianos  to  him,  refused  to  deliver  them  unless  the  plaintiff  would 
pay  the  amount  of  certain  e.xpences  which  had  been  incurred. 

Abbott,  J.,''  in  summing  up  to  tlie  jury  said,  I  wish  you  to  find 
whether  the  smaller  piano  was  let  on  hire,  or  sent  to  be  sold  by  Brown, 
if  an  opportunity  offered;  this  is  a  question  of  fact  for  your  considera- 
tion ;  and  although  I  am  of  opinion  that  it  will  make  no  difference  as 
to  the  verdict,  it  will  give  the  party  an  opportunity  of  making  the  dis- 
tinction. The  general  rule  is,  that  if  a  man  buy  goods,  or  take  them 
on  pledge,  and  they  turn  out  to  be  the  property  of  another,  the  own- 
er has  a  right  to  take  them  out  of  the  hands  of  the  purchaser ;  except, 
indeed,  in  the  case  of  a  sale  in  market  overt.  With  that  exception, 
it  is  incumbent  on  the  purchaser  to  see  that  the  vendee  has  a  good 
title.  And  I  am  of  opinion  that  if  goods  be  let  on  hire,  although  the 
person  who  hires  them  has  the  possession  of  them,   for  the  special 

i<!A.  leased  to  B.  certain  furniture.  B.  was  a  married  woman  and  incapable 
of  contracting.  C.  wrongfully  took  the  furniture  from  B.  Held,  A.  may 
maintain  trover  against  C.     Smith  v.  Plomer.  15  East.  607  (1812). 

Compare  Forbes  v.  JIarsh,  15  Conn.  38-1  (1S43) ;  Morgan  v.  Ide,  8  Gush. 
(Mass.)  420  (ISol). 

A  sheriff  attaches  A.'s  chattel  in  an  action  by  B.  C.  gives  the  sheriff  a 
receipt  for  the  chattel  and  makes  himself  responsible  for  it,  but  permits  it 
to  stay  in  A.'s  possession.  D.  wrongfully  takes  the  chattel  from  A.  Held, 
C.  may  replevy  it  from  D.    Miller  v.  Adsit,  10  Wend.  (N.  T.)  335  (1S36). 

1'  Part  of  the  opinion  is  omitted. 


22  ACTION    BASED   ON    POSSESSION    OR    OWNEIISIIIP  (Cll.  2 

purpose  for  which  they  are  lent,  yet,  if  he  send  them  to  an  auctioneer  to 
be  sold,  he  is  guilty  of  a  conversion  of  the  goods;  and  that  if  the  auc- 
tioneer afterwards  refuse  to  deliver  them  to  the  owner,  unless  he  will 
pay  a  sum  of  money  which  he  claims,  he  is  also  guilty  of  a  conver- 


HOLLY  V.  HUGGEFORD. 
(Supreme  Judicial  Court  of  Massachusetts,  1829.    8  Piclc.  73,  19  Am.  Dec.  303.) 

[The  plaintiff  sent  goods  to  one  Lobdell  for  the  latter  to  sell  on  com- 
mission. Lobdell  advanced  money  to  the  plaintiff  on  the  goods  thereby 
obtaining  a  lien  on  them.  The  goods  were  attached  while  in  Lobdell's 
possession  by  the  defendant  as  deputy  sheriff  in  an  action  by  one  Has- 
kell against  Lobdell.    The  plaintiff  brought  trespass  for  the  taking.] 

Parker,  C.  J."  The  principal  objection  to  the  verdict  in  this  case 
arises  from  the  supposed  lien  which  Lobdell,  the  debtor,  had  on  the 
goods  attached,  as  the  factor  to  whom  they  were  sent  to  be  sold  on 
commission,  he  having  accepted  draughts  drawn  by  Holly,  the  plain- 
tiff, the  balance  at  the  time  of  the  attachment  being  in  his  favor. 

It  was  argued  that  this  lien  so  destroyed  the  right  of  possession  in 
Holly,  that  he  cannot  maintain  trespass  against  the  sheriff  who  made 
the  attachment.  We  think  this  objection  is  not  supported.  It  is  true 
that  the  plaintiff  must  be  in  possession  of  tlie  goods  at  the  time  of  the 
injury,  in  order  to  maintain  this  action,  for  it  is  a  remedy  for  an  in- 
jury done  to  the  possession.  But  by  the  authorities,  general  property 
in  the  goods  carries  with  it  constructively  the  possession,  unless  by 
some  act  of  the  owner  he  has  so  parted  with  the  possession  that  at 
the  time  of  the  injury  he  has  no  right  to  reclaim  it;  as  if,  by  con- 
tract, he  had  given  the  use  and  possession  of  the  goods  for  a  speci- 
fied time,  during  which  that  injury  occurs;  which  may  happen  in  the 
case  of  a  lease  of  a  house  with  the  furniture  in  it,  or  of  a  store  with 
the  goods  in  it,  or  of  a  manufactory  with  the  machinery.  But  the 
lien  of  a  factor  does  not  dispossess  the  owner,  until  the  right  is  ex- 
erted by  the  factor.  It  is  a  privilege  which  he  may  avail  himself  of 
or  not,  as  he  pleases.  It  continues  only  while  the  factor  himself  has 
the  possession,  and  therefore  if  he  pledges  the  goods  for  his  own  debt, 
or  suffers  them  to  be  attached,  or  otherwise  parts  with  them  volun- 
tarily, the  lien  is  lost,  and  the  owner  may  trace  and  recover  them,  or 
he  may  sue  in  trespass  if  they  are  forcibly  taken ;  for  his  construc- 
tive possession  continued  notwithstanding  the  lien.  None  but  the 
factor  himself  can  set  up  this  privilege  against  the  owner.  It  is  a 
personal  privilege  of  the  factor,  and  cannot  be  transferred;    nor  can 

18  Part  of  the  opinion  is  omitted. 


Ch.  2)  ACTION    BASED    ON    POSSESSION    OR    OWNERSHIP  23 

the  question  upon  it  arise  between  any  but  the  principal  and  factor. 
Tones  v.  Sinclair,  2  N.  H.  321,  9  Am.  Dec.  75;  Daubigny  v.  Duval, 
5  T.  R.  606.     *     *     * 

Judgment  according  to  verdict.^' 


WHITE  V.  GRIFFIN. 
(Supreme  Court  of  North  Carolina,  1806.     49  N.  C.  139.) 

This  was  an  action  on  the  case,  for  unlawfully  seizing  and  detain- 
ing a  vessel,  called  the  Belle,  belonging  to  the  plaintiff,  tried  before 
Bailey,  Judge,  at  the  Spring  Term,  1854,  of  Pasquotank  Superior 
Court. 

The  vessel  had  been  chartered  to  one  Burgess,  to  make  a  voyage 
from  Elizabeth  City,  in  this  State,  to  the  West-India  Islands.     *     *     * 

The  Court  intimated  an  opinion,  that  the  plaintiff  was  not  entitled 
to  recover  any  thing.  In  deference  to  his  Honor's  opinion  the  plain- 
tiff took  a  nonsuit  and  appealed.-" 

Nash,  C.  J.  We  think  there  is  error  in  the  Judge's  opinion.  He 
doubtless  came  to  his  conclusion,  from  the  belief  that  the  plaintiff' 
could  not  recover  the  value  of  his  vessel  from  the  defendant,  which 
he  certainly  could  not,  (though  the  detention  by  him  might  have  been 
the  remote  cause  of  the  loss  of  the  vessel)  and  by  not  adverting  to 
the  principle,  that  for  every  tortious  act  committed  as  to  the  property 
of  another,  the  perpetrator  is  answerable,  in  damages,  to  the  owner, 
either  in  case  or  in  trespass.  If  the  trespass  is  committed  on  prop- 
erty while  in  possession  of  the  owner,  "trespass"  is  the  proper  rem- 
edy ;  if  while  in  the  possession  of  another  as  bailee,  the  owner  hav- 
ing but  a  reversion  of  the  property,  the  action  is  "case."  This  is  an 
action  of  the  latter  character — the  vessel  being  in  the  actual  posses- 
sion of  Burgess  at  the  time  the  act  was  committed.  The  vessel  was 
the  property  of  the  plaintiff,  and  by  him  chartered  to  Burgess  for  a 
trip  to  the  West  Indies.  She  was  loaded  with  staves,  the  property 
of  a  Mr.  Williams,  and  while  lying  at  the  Wharf  at  Elizabeth  City, 
and  ready  to  start  on  her  voyage,  one  Banks,  a  constable,  came  on 
board  and  levied  several  executions  on  the  staves.  In  one  of  these 
executions  the  present  defendant  was  the  plaintiff,  and  Banks  acted  by 
his  directions  in  making  the  levy.  The  executions  were  all  against 
Burgess ;  the  staves  belonged  to  Williams.  The  levy  was  illegal ;  in 
consequence  of  it,  the  vessel  was  detained  in  port  six  days,  and  though 

19  Ace:    Ames   v.   Palmer,   42   Me.    197,   66   Am.   Dee.   271    (ISoC),   trover; 
Stowel!  V.  Otis,  71  N.  Y.  S6  (1S77),  replevin. 
=  oThe  statement  of  facts  is  abridged. 


24  ACTION    BASED   ON    POSSESSION    OR    OWNERSHIP  (Cll.  2 

the  plaintiff  is  not  entitled  to  ask  for  damages  for  the  loss  of  the  ves- 
sel, yet,  he  is  entitled,  at  least,  to  nominal  damages  from  the  defend- 
ant, for  his  illegal  detention,  by  having  his  execution  improperly  and 
illegally  levied.     Venire  de  novo. 
Per  Curiam.    Judgment  reversed.*^ 

21  See  Hall  v.  PicUard,  3  Camp.  1S7  (1812). 

On  the  general  topic  of  this  chapter  see  "Property  in  Chattels"  by  Profes- 
sor Bordwell,  29  Harv.  L.  R.  374,  501,  731. 


Sec.  1)  POSSESSORY  INTERESTS   IN   CHATTELS  25 

CHAPTER  III 
POSSESSORY  INTERESTS  IN  CHATTELS 


SECTION  1.— FINDER 


ARMORY  V.  DELAMIRIE. 
(Nisi  Prius,  1722.     1  Strange,  505.) 

The  plaintiff  being  a  chimney  sweeper's  boy  found  a  jewel  and  car- 
ried it  to  the  defenchmt's  shop  (who  was  a  goldsmith)  to  know  what  it 
was,  and  delivered  it  into  the  hands  of  the  apprentice,  who  under  pre- 
tence of  weighing  it,  took  out  the  stones,  and  calling  to  tlie  master  to 
let  him  know  it  came  to  three  halfpence,  the  master  offered  the  boy  the 
money,  who  refused  to  take  it,  and  insisted  to  have  the  thing  again ; 
whereupon  the  apprentice  delivered  him  back  the  socket  without  the 
stones.    And  now  in  trover  against  the  master  these  points  were  ruled  : 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding  ac- 
quire an  absolute  property  or  ownership,  yet  he  has  such  a  property  as 
will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and  con- 
sequently may  maintain  trover. 

2.  That  the  action  well  lay  against  the  master,  who  gives  a  credit  to 
his  apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel  several  of  the  trade  were  examined 
to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket 
would  be  worth ;  and  the  Chief  Justice  directed  the  jury,  that  un- 
less the  defendant  did  produce  the  jewel,  and  shew  it  not  to  be  of  the 
finest  water,  they  should  presume  the  strongest  against  him,  and  make 
the  value  of  the  best  jewels  the  measure  of  their  damages :  which  they 
accordingly  did.^ 

lA.  foiiiid  a  vahuable  log  on  the  bank  of  a  river:  he  put  It  back  in  the 
stream  to  float  it  down  to  his  mill;  it  stranded  on  B.'s  land.  Held,  A.  is  en- 
titled to  the  possession  as  against  B.  Deaderick  v.  Oulds,  86  Tenn.  14,  5  S. 
W.  4S7,  6  Am.  St.  Kep.  812  (1887). 


2G  POSSESSORY   INTEUESTS  IN   CHATTELS  (Ch.  3 

BRIDGES  V.  HAWKESWORTH. 
(Court  of  Queen's  Bench,  1851.    21  L.  J.  N.  S.  75.) 

This  was  an  appeal  brought  by  the  plaintiff  from  the  Westminster 
County  Court. 

The  plaintiff  was  a  traveller  for  a  large  firm  with  which  the  defend- 
ant, who  was  a  shopkeeper,  had  dealings.  On  one  occasion  (October, 
1847)  the  plaintiff,  who  had  called  at  the  defendant's  on  business,  on 
leaving  the  defendant's  shop  noticed  and  picked  up  a  small  parcel 
which  was  lying  on  the  shop  floor.  He  immediately  shewed  it  to  the 
shopman,  and  on  opening  it  found  it  contained  bank  notes  to  the  value 
of  £55.  The  plaintiff  told  the  defendant  who  came  in  that  he  had 
found  a  parcel  of  notes,  and  requested  the  defendant  to  keep  tliem  to 
deliver  to  the  owner.  The  defendant  advertised  the  finding  of  them  in 
the  newspapers,  stating  that  they  should  be  restored  to  the  owner  on 
his  properly  describing  them  and  paying  the  expenses.  Three  years 
having  elapsed  and  no  owner  appearing  to  claim  them,  the  plaintiff  ap- 
plied to  the  defendant  for  them,  off'ering  to  pay  the  expense  of  the  ad- 
vertisements, and  to  indemnify  the  defendant  against  any  claim  in  re- 
spect of  them.  The  defendant  refused  to  deliver  them  up,  and  the 
plaintiff  consequently  brought  a  plaint  in  the  County  Court  of  West- 
minster to  recover  the  notes.  The  Judge  decided  that  the  defendant 
was  entitled  to  keep  them  as  against  the  plaintiff,  and  gave  judgment 
for  the  defendant.  It  was  found  in  the  case  that  the  plaintiff  when  he 
handed  the  notes  over  to  the  defendant  to  deliver  to  the  true  owner, 
did  not  intend  to  give  up  any  title  to  them  that  he  might  possess. 

Patteson,  J.  The  notes  which  are  the  subject  of  this  action  were 
evidently  dropped  by  mere  accident  in  the  shop  of  the  defendant  by 
the  owner  of  them.  The  facts  do  not  warrant  the  supposition  that  they 
had  been  deposited  there  intentionally,  nor  has  the  case  been  at  all  put 
upon  that  ground.  The  plaintiff"  found  them  on  the  floor,  they  being 
manifestly  lost  by  some  one.  The  general  right  of  the  finder  to  any 
article  which  has  been  lost  as  again.st  all  the  world  except  the  true 
owner,  was  established  in  the  case  of  Armory  v.  Delamirie  (1  Strange, 
505),  which  has  never  been  disputed.  This  right  would  clearly  have 
accrued  to  the  plaintiff  had  the  notes  been  picked  up  by  him  outside 
the  shop  of  the  defendant;  and  if  he  once  had  the  right,  the  case  finds 
that  he  did  not  intend  by  delivering  the  notes  to  the  defendant  to  waive 
the  title  (if  any)  which  he  had  to  them,  but  they  were  handed  to  the  de- 
fendant merely  for  the  purpose  of  delivering  them  to  tlie  owner  should 
he  appear.  Nothing  that  was  done  afterwards  has  altered  this  state  of 
things;  the  advertisements  indeed  in  the  newspapers  referring  to  the 
defendant  had  the  same  object ;  the  plaintiff  has  tendered  the  expense 
of  those  advertisements  to  the  defendant,  and  offered  him  an  indemnity 


Sec.  1)  FINDEK  27 

against  any  claim  to  be  made  by  the  real  owner,  and  has  demanded  the 
notes.  The  case,  therefore,  resolves  itself  into  the  single  point,  on 
which  it  appears  that  the  learned  Judge  decided  it:  namely,  whether 
the  circimistance  of  the  notes  being  found  inside  the  defendant's  shop, 
gives  him,  the  defendant,  the  right  to  have  them  as  against  the  plaintiff 
who  found  them.  There  is  no  authority  to  be  found  in  our  law  direct- 
ly in  point.  Perhaps  the  nearest  case  is  that  of  Merry  v.  Green  (7 
Mees.  &  W.  623,  10  Law  J.  Rep.  [N.  S.]  M.  C.  154),  but  it  ditters  in 
many  respects  from  the  present.  We  were  referred  in  the  course  of 
the  argument  to  the  learned  work  of  Von  Savigny,  edited  by  Chief 
Justice  Perry,  but  even  this  work,  full  as  it  is  of  subtle  distinctions  and 
nice  reasonings,  does  not  afford  a  solution  of  the  present  question.  It 
was  well  asked  on  the  argument,  if  the  defendant  has  the  right,  when 
did  it  accrue  to  him?  If  at  all,  it  must  have  been  antecedent  to  the 
finding  by  the  plaintiff,  for  that  finding  could  not  give  the  defendant 
any  right.  If  the  notes  had  been  accidentally  kicked  into  the  street, 
and  then  found  by  some  one  passing  by,  could  it  be  contended  that  the 
defendant  was  entitled  to  them,  from  the  mere  fact  of  their  having 
been  originally  dropped  in  his  shop?  If  the  discovery  had  not  been 
communicated  to  the  defendant,  could  the  real  owner  have  had  any 
cause  of  action  against  him,  because  they  were  found  in  his  house? 
Certainly  not.  The  notes  never  were  in  the  custody  of  the  defendant, 
nor  within  the  protection  of  his  house  before  they  were  found,  as  they 
would  have  been  had  they  been  intentionally  deposited  there,  and  the 
defendant  has  come  under  no  responsibility,  except  from  the  communi- 
cation made  to  him  by  the  plaintiff,  the  finder,  and  the  steps  taken  by 
way  of  advertisement.  These  steps  were  really  taken  by  the  defendant 
as  the  agent  of  the  plaintiff,  and  he  has  been  offered  an  indemnity,  the 
sufficiency  of  which  is  not  disputed.  We  find,  therefore,  no  circum- 
stances in  this  case  to  take  it  out  of  the  general  rule  of  law,  that  the 
finder  of  a  lost  article  is  entitled  to  it  as  against  all  parties  except  the 
real  owner ;  and  we  think  that  rule  must  prevail,  and  that  the  learned 
Judge  was  mistaken  in  holding  that  the  place  in  which  they  were  found 
makes  any  legal  dift'erence.  Our  judgment  therefore  is,  thatt  the  plain- 
tiff is  entitled  to  these  notes  as  against  the  defendant,  and  that  the 
judgment  of  the  Court  below  must  be  reversed,  and  judgment  given 
for  the  plaintiff  for  i50.  The  plaintiff  to  have  the  costs  of  the  appeal. 
Judgment  reversed.^ 

=  Ace:    Hoagland  v.  Forest  Park  Highlands  Amusement  Co.,  170  Mo.  335, 
70  S.  W.  S78,  94  Am.  SL  Bep.  740  (1901i). 


28  POSSESSORY  INTERESTS  IN  CHATTELS  (Cll.  3 

SOUTH  STAFFORDSHIRE  WATER  CO.  v.  SHARMAN. 
(Court  of  Queen's  Bench  Division.    [1S9G]  2  Q.  B.  44.) 

Lord  Russell  of  Killowen,  C.  j.«  *  *  *  The  action  was 
brought  in  detinue  to  recover  the  possession  of  two  gold  rings  from  the 
defendant.  The  defendant  did  not  deny  that  he  had  possession  of  the 
rings,  but  he  denied  the  plaintiffs'  title  to  recover  them  from  him.  Un- 
der those  circumstances  the  burden  of  proof  is  cast  upon  the  plaintiffs 
to  make  out  that  they  have,  as  against  the  defendant,  the  right  to  the 
possession  of  the  rings. 

Now,  the  plaintiffs,  under  a  conveyance  from  the  corjioration  of 
Lichfield,  are  the  owners  in  fee  simple  of  some  land  on  which  is  situate 
a  pool  known  as  the  Minster  Pool.  For  purposes  of  their  own  the 
plaintiffs  employed  the  defendant,  among  others,  to  clean  out  that  pool. 
In  the  course  of  that  operation  several  articles  of  interest  were  found, 
and  amongst  others  the  two  gold  rings  in  question  were  found  by  the 
defendant  in  the  mud  at  the  bottom  of  the  pool. 

The  plaintiffs  are  the  freeholders  of  the  locus  in  quo,  and  as  such 
they  have  the  right  to  forbid  anybody  coming  on  their  land  or  in  any 
way  interfering  with  it.  They  had  the  right  to  say  that  their  pool 
should  be  cleaned  out  in  any  way  that  they  thought  fit,  and  to  direct 
what  should  be  done  with  anything  found  in  the  pool  in  the  course  of 
such  cleaning  out.  It  is  no  doubt  right,  as  the  counsel  for  the  defend- 
ant contended,  to  say  that  the  plaintiffs  must  shew  that  they  had  actual 
control  over  the  locus  in  quo  and  the  things  in  it ;  but  under  the  cir- 
cumstances, can  it  be  said  that  the  Minster  Pool  and  whatever  might  be 
in  that  pool  were  not  under  the  control  of  the  plaintiffs?  In  my  opin- 
ion, they  were.  The  case  is  like  the  case,  of  which  several  illustrations 
were  put  in  the  course  of  the  argtmient,  where  an  article  is  found  on  pri- 
vate property,  although  the  owners  of  that  property  are  ignorant  that 
it  is  there.  The  principle  on  which  this  case  must  be  decided,  and  the 
distinction  which  must  be  drawn  between  this  case  and  that  of  Bridges 
V.  Hawkesworth,  21  L.  J.  (Q.  B.)  75,  is  to  be  found  in  a  passage  in  Pol- 
lock and  Wright's  Essay  on  Possession  in  the  Common  Law,  p.  41 : 
"The  possession  of  land  carries  with  it  in  general,  by  our  law,  posses- 
sion of  everything  which  is  attached  to  or  under  that  land,  and,  in  the 
absence  of  a  better  title  elsewhere,  the  right  to  possess  it  also.  And  it 
makes  no  difference  that  the  possessor  is  not  aware  of  the  thing's  ex- 
istence. *  *  *  It  is  free  to  any  one  who  requires  a  specific  inten- 
tion as  part  of  a  de  facto  possession  to  treat  this  as  a  positive  rule  of 
law.  But  it  seems  preferable  to  say  that  the  legal  possession  rests  on 
a  real  de  facto  possession  constituted  by  the  occupier's  general  power 
and  intent  to  exclude  unauthorized  interference." 

3  The  statement  of  facts  and  part  of  the  opinion  of  Lord  Russell,  C.  J.,  and 
the  opinion  of  Wilk,  J.,  are  omitted. 


Sec.  1)  riNDEE  29 

That  is  the  ground  on  which  I  prefer  to  base  my  judgment.  There 
is  a  broad  distinction  between  this  case  and  those  cited  from  Black- 
stone.  Those  were  cases  in  which  a  thing  was  cast  into  a  pubhc  place 
or  into  the  sea — into  a  place,  in  fact,  of  which  it  could  not  be  said  that 
any  one  had  a  real  de  facto  possession,  or  a  general  power  and  intent 
to  exclude  unauthorized  interference.     *     *     * 

It  is  somewhat  strange  that  there  is  no  more  direct  authority  on  the 
question ;  but  the  general  principle  seems  to  me  to  be  that  where  a  per- 
son has  possession  of  house  or  land,  with  a  manifest  intention  to  exer- 
cise control  over  it,  and  the  things  which  may  be  upon  or  in  it,  then,  if 
something  is  found  on  that  land,  whether  by  an  employee  of  the  owner 
or  by  a  stranger,  the  presumption  is  that  the  possession  of  that  thing  is 
in  the  owner  of  the  locus  in  quo.     *     *     * 

Appeal  allowed;  judgment  for  plaintiffs.* 


TATUM  V.  SHARPLESS. 

(District  Court  of  Philadelphia,  1S65.    6  Phila.  18.) 

This  case  came  on  for  trial  a  short  time  since,  when  the  following 
facts  being  conceded  by  the  parties  to  have  been  proved  by  the  evi- 
dence, viz.  that  the  plaintiff  was  a  conductor  on  a  passenger  car  be- 
longing to  the  Fairmount  Passenger  Railway  Company,  and  was  in 
charge  of  said  car  upwards  of  a  year  ago,  when,  on  arriving  at  the 
end  of  the  route,  and  after  all  the  passengers  had  left  the  car,  there 
remained  on  one  of  the  seats  a  pocket  book  containing  upwards  of  one 
hundred  dollars  in  United  States  Treasury  notes,  that  the  plaintiff 
found  the  pocket  book  in  this  way,  and  had  not  then  nor  has  he  now 
any  knowledge  who  was  or  is  the  owner  of  the  same;  that  the  plain- 
tiff immediately  took  it  and  delivered  it  to  the  defendant,  who  was 
at  the  time  in  charge  of  the  affairs  of  said  company  as  a  receiver  ap- 
pointed by  the  Supreme  Court :  that  the  defendant  caused  the  pocket 
book  to  be  advertised  three  times  in  the  Public  Ledger,  published  in 
this  city,  as  found  in  the  car  as  aforesaid,  said  Public  Ledger  having 

*A.  leased  land  to  B.,  who  in  excavating  unearthed  at  a  depth  of  six  feet 
a  boat  about  two  thousand  years  old.  Held,  A.  is  entitled  to  the  lx)at  as 
against  B.  Elwes  v.  Brigg  Gas  Co.,  L.  R.  33  Ch.  Div.  562  (1SS6).  See  Goddard 
V.  Winchell,  86  Iowa,  71,  52  N.  W.  1121,  17  L.  R.  A.  7SS,  41  Am.  St.  Rep.  4S1 
(1S92). 

A  canal  company  drained  its  canal  to  clean  it.  A.,  a  stranger,  stole  a  har 
of  iron  from  the  bottom  of  the  canal.  Held,  he  may  be  indicted  for  stealing 
the  property  of  the  canal  company.     Regina  v.  Rowe,  Bell  C.  C.  93  (1859). 

A  stick  of  timber  was  thrown  by  the  tide  on  A.'s  land,  whence  it  was  tak- 
en by  B.,  a  trespasser.  Held,  A.  is  entitled  to  bring  trespass  for  breaking  and 
entering  and  recover  the  value  of  the  timl>er  in  his  damages.  Barker  v. 
Bates,  13  Pick.  (Mass.)  255,  23  Am.  Dec.  678  (1832). 


30  POSSESSORY   INTERESTS  IN   CHATTELS  (Cll.  3 

the  largest  circulation  of  any  newspaper  in  the  State.  That  it  was 
the  custom  on  this  route  when  anything  of  value  was  found  in  the 
cars  by  the  drivers  or  conductors,  to  take  it  into  the  office  of  the  com- 
pany, and  leave  it  there  with  the  name  of  the  finder  marked  on  it,  and 
if  the  owner  appeared  the  article  was  returned  to  him,  if  no  owner 
appeared  after  the  lapse  of  a  year  or  so,  it  was  handed  back  to  the 
finder. 

That  after  the  lapse  of  a  year  from  the  time  when  the  pocket  book 
was  found  and  taken  by  the  plaintiff  to  the  office,  he  demanded  of 
the  defendant  the  return  of  it  and  its  contents  to  himself.  The  de- 
fendant replied  that  he  must  see  counsel  first,  and  after  having  done 
so,  he  said  he  was  unwilling  to  give  it  up.  At  the  same  time  he  dis- 
claimed all  right  to  retain  the  book  and  contents  for  his  own  benefit. 

Upon  the  admission  of  these  facts  by  the  parties,  the  jury  were  in- 
structed to  find  a  verdict  for  the  plaintifl:  for  one  hundred  dollars,  the 
law  arising  thereon  being  reserved  by  the  judge  for  the  opinion  of 
the  court  in  banc. 

After  a  full  argument  by  counsel  before  the  whole  court,  the  fol- 
lowing opinion  was  given  on  the  8th  of  April,  1865,  by  Stroud,  J. : 

A  princijjal  point  ruled  in  Armory  v.  Delamirie,  1  Strange,  505,  was 
that  the  finder  of  a  chattel,  though  he  does  not  by  such  finding  ac- 
quire an  absolute  property  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and 
consequently  may  maintain  trover. 

Although  this  was  the  ruling  of  a  single  judge  at  nisi  prius,  it  has 
been  thoroughly  acquiesced  in  ever  since  as  a  settled  principle  of  the 
common  law. 

Unless,  therefore,  the  case  before  us  can  in  its  cardinal  facts  be  dis- 
tinguished from  that  case,  our  judgment  should  be  for  the  plaintiff. 

I  am  unable  to  perceive  any  solid  ground  of  distinction.  The  par- 
cel was  left  in  the  car,  accidentally  no  doubt,  by  some  one  unknown 
then  and  not  yet  discovered.  It  was  found  by  the  plaintiff,  and  im- 
mediately afterwards  taken  to  the  office  of  the  company  owning  the 
cars,  and  handed  to  the  defendant,  then  in  charge  of  this  office.  It 
was  advertised  in  the  columns  of  a  public  newspaper  having  the  larg- 
est circulation  among  newspapers  of  this  city  and  State.  No  one  has 
ever  come  forward  to  claim  ownership  of  what  had  been  thus  found. 

Why  then  should  there  be  any  question  as  to  giving  judgment  for 
the  plaintiff  on  the  verdict  which  is  in  his  favor? 

It  was  suggested  on  behalf  of  the  defendant  that  the  relation  be- 
tween plaintiff  and  the  company  was  that  of  master  and  servant,  and 
that  probably,  should  the  parcel  found  be  surrendered  by  the  com- 
pany to  the  plaintiff,  the  true  owner,  should  he  appear  and  prove  his 
property,  might  compel  its  delivery  or  damages  for  withholding  it. 
If  the  law  would  sustain  such  a  demand,  there  would  be  very  firm 
ground  for  the  defendant  to  stand  upon,  no  authority  of  the  kind  was 


Sec.  1)  FIKDEE-  31 

referred  to  on  the  argument,  and  I  have  not  been  able  to  meet  with 
any. 

In  Mathews  and  wife  v.  Harsell,  1  E.  D.  Smith  (N.  Y.)  393,  a 
doubt  was  expressed  whether  a  house  servant  finding  lost  jewels  in 
the  house  of  her  employer,  acquired  by  the  finding  a  right  to  retain 
possession  of  them  against  tl]e  will  of  the  employer. 

The  thing  found  was  a  parcel  consisting  of  Texas  notes.  The  em- 
jiloyers  of  the  servant  made  no  claim  to  retain  them,  but  on  the  con- 
trary gave  express  assent  to  the  maintenance  of  the  action  by  the  serv- 
ant against  a  third  person,  who,  on  being  consulted  in  respect  to  the 
value  of  the  notes  and  obtaining  the  possession  of  them  in  that  way, 
refused  to  give  them  up. 

The  court  sustained  the  right  of  the  servant  as  finder. 

Bridges  v.  Hawkesworth,  7  Eng.  Law  and  Eq.  Reps.  424  (taken 
from  15  Jurist,  1027),  furnishes  a  concurrent  decision  based  also  upon 
Armory  v.  Delamirie.  The  plaintiflf  picked  up  from  the  floor  of  the 
shop  of  the  defendant  a  parcel  containing  bank  notes,  and  handed 
them  to  the  defendant  to  keep  till  the  owner  should  claim  them.  They 
were  advertised  in  a  leading  newspaper  of  the  city  of  London,  but  no 
owner  appeared  to  claim  them.  Three  years  elapsed  and  the  plaintiff 
requested  the  defendant  to  return  the  parcel  to  him,  tendering  the 
costs  of  the  advertisements,  and  ofifering  an  indemnity.  The  judg- 
ment of  the  court  was  for  the  plaintiff  as  finder. 

The  important  point  in  these  decisions  was  that  the  place  in  which  a 
lost  article  is  found  does  not  constitute  any  exception  to  the  general 
rule  of  law  that  the  finder  is  entitled  to  it  as  against  all  persons  ex- 
cept the  owner. 

The  right  of  the  finder  depends  on  his  honesty  and  entire  fairness 
of  conduct.  The  circumstances  attending  the  finding  must  manifest 
good  faith  on  his  part.  There  must  be  no  reason  to  suspect  that  the 
owner  was  known  to  him  or  might  have  been  ascertained  by  proper 
diligence. 

The  English  cases  scrutinize  the  character  of  the  finder  with  great 
severity.  If  he  has  any  ground  for  belief  that  the  owner  is  a  partic- 
ular individual,  or  if  enough  is  known  to  the  finder  to  enable  him 
to  prosecute  with  success  a  search  for  the  owner,  and  instead  of  using 
this  knowledge,  or  these  means,  he  attempts  to  appropriate  to  his 
own  use  what  has  been  found,  he  will  subject  himself  to  the  charge 
of  larceny. 

Thus,  where  a  person  purchased  at  public  auction  a  bureau  in  which 
he  afterwards  discovered,  in  a  secret  drawer,  a  purse  containing  sov- 
ereigns and  bank  notes,  which  he  appropriated  to  his  own  use,  neither 
he  nor  any  one  else  knowing  at  the  time  of  sale  that  the  bureau  con- 
tained anything  whatever,  it  was  held  that  if  the  buyer  had  no  rea- 
son to  believe  that  anything  more  than  the  bureau  was  sold,  the  ab- 
straction of  the  money  was  a  felonious  taking,  and  he  was  guilty  of 


32  POSSESSOnY   INTERESTS   IN  CHATTELS  (Cll.  3 

larceny  in  appropriating  the  money  to  his  own  use.  Merry  v.  Green, 
7  JMee.  &  Wels.  623. 

There  have  been  numerous  decisions  to  the  same  et¥ect,  chiefly 
arising  from  the  detention  and  misappropriation  of  goods  found  by 
hackney  coachmen  in  their  vehicles.  Rex  v.  Wynne,  1  Leach's  Crown 
Cases,  460;  Rex  v.  Sears,  in  note  to  same  case;  and  see  State  v. 
Weston,  9  Conn.  527,  25  Am.  Dec.  46;  Cartwright  v.  Green,  8  Ves. 
409;  Rex  v.  Pope,  6  Car.  &  Payne,  346. 

It  is  to  be  always  borne  in  mind  that  the  finder  of  a  lost  article  ac- 
quires at  most  but  a  special  property  in  the  thing  found.  But  he  is 
the  only  person,  except  the  true  owner,  who  can  claim  any  title  at  all. 

The  conduct  of  the  plaintiff  after  finding  the  parcel  in  question  in 
this  case  was  unexceptionably  correct.  He  attempted  no  concealment, 
but  took  the  pocket  book  at  once  to  the  office  of  the  company  and  gave 
it  into  tlie  custody  of  the  defendant. 

Both  parties  to  the  action  have  acted  fairly.  The  lost  article  was  ad- 
vertised. The  defendant  disclaims  any  purpose  of  retaining  the  pocket 
book  or  its  contents  for  his  own  use. 

The  plaintiff  does  not  assert  that  they  are  his,  but  as  the  finder  he 
maintains  that  he  has  a  special  property  in  them,  superior  to  that  of 
any  one  else  but  the  owner. 

We  are  strongly  impressed  with  the  utility  of  legislation  requiring 
railway  companies  to  adopt  measures  by  which,  in  every  case  of  an 
article  left  by  a  passenger  in  a  car,  the  custody  of  it  should  be  as- 
sumed by  the  company,  with  a  corresponding  obligation  prcrmptly  to 
deliver  it  to  the  owner  on  satisfactory  proof  of  his  loss.  Notice  of 
such  a  regulation  should  be  conspicuously  posted  up  in  each  car.  This 
would  induce  losers  to  apply  speedily  to  the  companies  for  informa- 
tion and  restoration.  In  the  absence  of  such  a  law  or  of  any  regula- 
tion of  the  company  on  the  subject,  we  have  nothing  to  guide  our  judg- 
ment but  the  known  principles  of  the  common  law  wdiich  accords  to 
the  finder  a  special  property  such  as  in  this  case  the  plaintiff  claims. 

Judgment  is  to  be  entered  for  the  plaintiff  on  the  points  reserved. ° 

s  Ace. :  HaMiaker  v.  Blanehard,  90  Pa.  377,  35  Am.  Rep.  G04  (1S79).  See 
Bowen  v.  Sullivan,  02  laU.  281,  30  Am.  Rep.  172  (1878). 


Sec.  1)  FINDER  33 


DANIELSON  v.  ROBERTS. 

(Supreme  Court  of  Oregon,  1904.     44  Or.  108,  74  Pac.  913,  65  L.  R.  A.  52C, 

102  Am.  St.  Rep.  627.) 

[The  plaintiffs,  boys  of  eight  and  ten,  were  employed  by  the  de- 
fendant to  clean  an  old  hen  house  upon  the  latter's  land.  While  so 
doing  the  plaintiffs  found  buried  three  or  four  inches  below  the  sur- 
face of  the  earth  a  rusted  can  containing  $7,000  in  gold  coin.  They 
delivered  the  coin  to  the  defendant  who  on  a  subsequent  demand 
by  the  plaintiffs  refused  to  give  it  up  and  claimed  it  as  his  own.  Plain- 
tiff's brought  trover  for  the  conversion  of  the  money.  They  were 
non  suited  below  and  appealed.] 

Bean,  J.6  *  *  *  The  motion  for  nonsuit  was  sustained  on  the 
ground,  as  we  understand  it,  that  the  evidence  for  the  plaintiffs  show- 
ed that  the  money  in  question  had  been  intentionally  deposited  by 
some  one  where  found,  and  therefore  the  plaintiff's  could  not  invoke 
the  rule  that  the  finder  of  lost  property  is  entitled  to  its  possession 
against  all  die  world  except  its  true  owner.  Ever  since  the  early  case 
of  Armory  v.  Delamirie,  1  Strange,  505,  where  it  was  held  that  the 
finder  of  a  jewel  might  maintain  trover  for  the  conversion  thereof 
by  a  wrongdoer,  the  right  of  the  finder  of  lost  property  to  retain  it 
against  all  persons  except  the  true  owner  has  been  recognized.  In 
that  case  a  chimney  sweeper's  boy  found  a  jewel,  and  carried  it  to 
a  goldsmith  to  ascertain  what  it  was.  The  goldsmith  refused  to  return 
it,  and  it  was  held  that  the  boy  might  maintain  trover  on  the  ground 
that  by  the  finding  he  had  acquired  such  a  property  in  the  jewel  as 
would  entitle  him  to  keep  it  against  all  persons  but  the  rightful  own- 
er. This  case  has  been  uniformly  followed  in  England  and  America, 
and  the  law  upon  this  point  is  well  settled.  Sovern  v.  Yoran,  16  Or. 
269,  20  Pac.  100,  8  Am.  St.  Rep.  293 ;  19  Am.  &  Eng.  Ency.  Law  (2d 
Ed.)  579.  But  it  is  argued  that  property  is  lost  in  the  legal  sense  of 
that  word  only  when  the  possession  has  been  casually  and  involuntarily 
parted  with,  and  not  when  the  owner  purposely  and  voluntarily  places 
or  deposits  it  in  a  certain  place  for  safe-keeping,  although  he  may 
thereafter  forget  it,  and  leave  it  where  deposited,  or  may  die  without 
disclosing  to  any  one  the  place  of  deposit.  This  seems  to  have  been 
the  view  taken  by  Mr.  Justice  Lord  in  Sovern  v.  Yoran,  where  money 
was  found  hidden  under  the  floor  of  a  barn.  It  had  evidently,  as  in 
this  case,  been  deposited  there  by  some  one,  and  the  question  for  de- 
cision was  whedier  the  defendant  who  had  treated  the  money  as  lost 
property,  and  disposed  of  it  as  provided  in  the  statute,  was  guilty  of  a 
conversion,  and  liable  to  the  true  owner  therefor.  It  is  said  in  the 
opinion  that  until  the  owner  was  discovered,  the  money  was  in  the 

«  Part  of  the  opinion  Is  omitted. 
Big.PebsJ'bop. — 3 


34  POSSESSORY  INTERESTS  IN  CHATTELS  (Ch.  3 

nature  of  treasure  trove,  and  could  not  be  treated  as  lost  property, 
within  the  meaning  of  the  statute.  At  common  law  a  distinction  was 
made  between  lost  property  and  treasure  trove.  Lost  property  was 
such  as  was  found  on  the  surface  of  the  earth,  and  with  which  the  own- 
er had  involuntarily  parted.  The  presumption  arising  from  the  place 
of  finding  was  that  the  owner  had  intended  to  abandon  his  property, 
and  that  it  had  gone  back  to  the  original  stock,  and  therefore  belonged 
to  the  finder  or  first  taker  until  the  owner  appeared  and  showed  that 
its  losing  was  accidental,  or  without  an  intention  to  abandon  the 
property.  Treasure  trove,  on  the  other  hand,  was  money  or  coin  found 
hidden  or  secreted  in  the  earth  or  other  private  place ;  the  owner  being 
unknown.  It  originally  belonged  to  the  finder  if  the  owner  was  not  dis- 
covered; but  Blackstone  says  it  was  afterward  judged  expedient,  for 
the  purposes  of  State,  and  particularly  for  the  coinage,  that  it  should 
go  to  the  king;  and  so  the  rule  was  promulgated  that  property  found 
on  the  surface  of  the  earth  belonged  to  the  finder  until  the  owner  ap- 
peared, but  that  found  hidden  in  the  earth  belonged  to  the  king.  1 
Bl.  Com.  *295. 

In  this  country  the  law  relating  to  treasure  trove  has  generally  been 
merged  into  the  law  of  the  finder  of  lost  property,  and  it  is  said  that 
the  question  as  to  whether  the  English  law  of  treasure  trove  obtains 
in  any  State  has  never  been  decided  in  America.  2  Kent,  357;  26 
Am.  &  Eng.  Ency.  Law  (1st  Ed.)  538.  But  at  the  present  stage  of  the 
controversy  it  is  immaterial  whether  the  money  discovered  by  plaintiffs 
was  technically  lost  property  or  treasure  trove,  or  if  treasure  trove, 
whether  it  belongs  to  the  State  or  to  the  finder,  or  should  be  dis- 
posed of  as  lost  property  if  no  owner  is  discovered.  In  either  event 
the  plaintiffs  are  entitled  to  the  possession  of  the  money  as  against 
the  defendants,  unless  the  latter  can  show  a  better  title.  The  reason 
of  the  rule  giving  the  finder  of  lost  property  the  right  to  retain  it 
against  all  p>ersons  except  the  true  owner  applies  with  equal  force 
and  reason  to  money  found  hidden  or  secreted  in  the  earth  as  to  prop- 
erty found  on  the  surface.  It  is  thus  stated  in  Armory  v.  Delamirie,  1 
Smith's  Lead.  Cas.  pt.  1,  *475 :  "Every  one  on  whom  the  possession 
of  chattels  personal  is  cast  by  the  law,  by  the  act  of  the  parties,  or 
through  the  force  of  circumstances  is  charged  with  the  duty  of  taking 
reasonable  care,  and  answerable  if  he  does  not  to  the  owner,  and  may 
consequently  recover  for  any  wrongful  act  by  which  the  property 
is  impaired,  in  the  capacity  of  trustee,  if  in  no  other  character."  The 
money  for  which  this  action  is  brought  came  lawfully  into  the  posses- 
sion of  the  plaintiffs.  The  circumstances  under  which  it  was  discover- 
ed, the  condition  of  the  vessel  in  which  it  was  contained,  and  the 
place  of  deposit,  as  shown  by  the  plaintiffs'  testimony,  all  tend  with 
more  or  less  force  to  indicate  that  it  had  been  buried  for  some  con- 
siderable time,  and  that  the  owner  was  probably  dead  or  unknown. 
The  plaintiffs,  having  thus  come  into  its  possession,  were  charged  with 


Sec.  1)  FINDER  35 

the  duty  of  holding  it  for  the  true  owner,  if  he  could  be  ascertained, 
and,  if  not,  of  making  such  disposition  thereof  as  the  law  required. 
The  possession  of  the  money  was  cast  upon  them  by  the  force  of  cir- 
cumstances. They  were  consequently  under  the  obligation  of  taking 
reasonable  care  of  it  until  it  could  be  returned  to  the  true  owner,  or 
otherwise  disposed  of,  and  they  may  therefore  maintain  such  actions 
or  proceedings  as  may  be  necessary  to  enable  them  to  retain  or  recover 
its  possession.  The  fact  that  the  money  was  found  on  the  premises 
of  the  defendants,  or  that  the  plaintiffs  were  in  their  service  at  the 
time,  can  in  no  way  affect  the  plaintiffs'  right  to  possession,  or  their 
duty  in  reference  to  the  lost  treasure ;  Hamaker  v.  Blanchard,  90  Pa. 
Z77,  35  Am.  Rep.  664;  Bowen  v.  Sullivan,  62  Ind.  281,  30  Am.  Rep. 
172;  Tatum  v.  Sharpless,  6  Phila.  (Pa.)  18;  Durfee  v.  Jones,  11  R. 
I.  588,  23  Am.  Rep.  528;  Bridges  v.  Hawkesworth,  21  L.  J.  Q.  B.  75. 
We  are  of  the  opinion,  therefore,  that  the  case  should  have  gone  to 
the  jury,  and  unless  it  should  appear  that  the  defendants  are  the  owners 
of  the  money,  they  must  return  the  possession  thereof  to  the  plaintiffs, 
in  order  that  they  may  make  lawful  disposition  thereof.  Judgment 
reversed  and  new  trial  ordered. 
Reversed.^ 


LIVERMORE  v.  WHITE. 

(Supreme  Judicial  Court  of  Maine,  1SS3.    74  Me.  452,  43  Am.  Rep.  600.) 

ApplETOn,  C.  J.*  This  is  an  action  of  replevin  for  certain  hides 
of  tanned  leather.  The  plaintift''s  only  title  is  as  finder  of  them  as  lost 
goods.  The  verdict  being  against  him,  exceptions  were  duly  filed  to 
the  rulings  of  the  presiding  justice,  which  have  been  very  elaborately 
and  ably  argued. 

It  is  in  proof  that  in  1840,  Edward  Southwick  was  then  owning  and 
carrying  on  a  large  tannery,  containing  seven  hundred  and  eleven 
vats  of  which  the  vats  in  question  were  part ;  that  he  sold  the  tanner)' 
to  Southwick  and  Weeks  who  occupied  a  portion  of  the  vats,  not  oc- 
cupying the  outside  vats;  that  Edward  Southwick  died  shortly  after 
his  conveyance  of  his  estate;  that  the  same  passed  to  the  Vassalboro' 
Manufacturing  Company,  which  erected  its  mills  thereon  over  twenty 
years  ago;  that  the  defendant  is  their  agent  and  servant;  that  while 
the  company  were  digging  to  lay  a  foundation  for  a  brick  building  in 
addition  to  their  present  erection,  the  plaintiff,  a  servant  in  their  em- 

■JAcc:  Weeks  v.  Hackett,  104  Me.  264,  71  Atl.  858,  19  L.  R.  A.  (N.  S.)  1201, 
120  Am.  St.  Rep.  390,  15  Ann.  Cas.  1156  (1908);  Roberson  v.  Ellis,  58  Or. 
219,  114  Pac.  100,  35  L.  R.  A.  (N.  S.)  979  (1911).  See  Ferguson  v.  Ray,  44  Or. 
557,  77  Pac.  600,  1  L.  R.  A.  (N.  S.)  477,  102  Am.  St.  Rep.  C4S,  1  Arm.  Cas.  1 
(1904). 

8  Part  of  the  opinion  Is  omitted. 


36  POSSESSORY   INTERESTS  IN   CHATTELS  (Ch.  3 

ploy,  discovered  the  vats  and  the  leather  therein,  by  virtue  of  which 
discovery  he  claims  title  thereto. 

It  further  appeared  that  these  hides  were  identified  as  hides  placed 
in  the  vats  by  Edward  Southwick,  and  omitted  to  be  taken  when  his 
vats  were  emptied.     *     *     * 

(III).  This  is  not  a  case  of  lost  goods.  The  owner  is  shown.  They 
belong  to  his  estate.  The  title  of  the  finders  vanishes  when  the  owner 
is  known.  These  goods  were  not  lost.  The  facts  negative  a  loss  by 
the  owner.  The  hides  were  through  carelessness  left  in  the  vat.  If 
the  fact  of  their  being  there  was  forgotten  by  the  owner,  they  are  none 
the  less  his — and  though  forgotten  they  are  not  lost.  They  remained 
in  the  vats  subject  to  his  control.  In  McAvoy  v.  Medina,  11  Allen 
(Mass.)  548,  87  Am.  Dec.  733,  it  was  held  that  placing  a  pocket 
book  voluntarily  by  a  customer  upon  a  table  in  a  shop,  and  accidentally 
leaving  it  there  or  forgetting  to  take  it,  is  not  to  lose  it  within  the  sense 
in  which  the  authorities  speak  of  lost  property.  "To  discover  an  ar- 
ticle voluntarily  laid  down  by  the  owner  in  a  banking  room  and  upon 
a  desk  provided  for  such  persons  having  business  there,  is  not  the 
finding  of  a  lost  article,"  remarks  Wells,  J.,  in  Kincaid  v.  Eaton,  98 
Mass.  139,  93  Am.  Dec.  142.  "Property  is  not  lost  in  the  sense  of  the 
rule,"  observ'es  Trunkey,  J.,  in  Hamaker  v.  Blanchard,  90  Pa.  377,  35 
Am.  Rep.  664,  "if  it  was  intentionally  laid  on  the  table,  counter  or 
other  place  by  the  owner,  who  forgot  to  take  it  away,  and  in  such  case 
the  proprietor  of  the  premises  is  entitled  to  retain  the  custody."  "The 
loss  of  goods,"  the  court  say,  in  Lawrence  v.  State,  1  Humph.  (Tenn.) 
228,  34  Am.  Dec.  644,  "in  legal  and  common  intendment,  depends  on 
something  more  than  the  knowledge  or  ignorance,  the  memory  or  want 
of  memory  of  the  owner  as  to  their  locality  at  any  given  moment. 
*  *  *  To  lose  is  not  to  place  anything  carefully  and  voluntarily  in 
the  place  you  intend  and  then  forget  it ;  it  is  casually  and  involuntarily 
to  part  from  the  possession ;  and  the  thing  is  then  usually  found  in 
a  place  or  under  circumstances  to  prove  to  the  finder  the  owner's  will 
was  not  employed  in  placing  it  there." 

The  instructions  upon  the  controverted  questions  were  correct. 
Hides  in  a  vat  for  tlie  purpose  of  tanning,  though  not  removed  when 
the  other  vats  are  cleared,  are  not  to  be  deemed  abandoned  or  derelict, 
— nor  though  remaining  in  the  vats  for  a  long  period  through  the  for- 
getfulness  of  their  owner  or  the  ignorance  of  his  representative,  are 
they  to  be  considered  lost,  so  that  the  finder  thereby  acquires  a  title 
to  them.  Nor  can  the  finding  be  deemed  treasure  trove,  for  there  was 
no  gold  or  silver  hidden,  and  no  hiding.^ 

»Acc.:  McAvoy  v.  Medina,  11  Allen  (Mass.)  548,  87  Am.  Dee.  7?,?j  (1866); 
Foster  v.  Fidelity  Safe  Deposit  Co.,  162  Mo.  App.  165,  145  S.  W.  139  (1912), 
affirmed  264  Mo.  89,  174  S.  W.  376,  L.  R.  A.  1916A,  655  (1915) ;  Loucks  v.  Gal- 
logly,  1  Misc.  Kep.  22,  23  N.  Y.  Supp.  126  (1892). 


Sec.  1)  FINDER  37 

DURFEE  V.  JONES. 

(Supreme  Court  of  Rhode  Island,  1S77.     11  R.  I.  58S,  23  Am.  Rep.  52S.) 

DuRFEE,  C.  J.  The  facts  in  this  case  are  briefly  these:  In  April, 
1874,  the  plaintiff  bought  an  old  safe  and  soon  afterwards  instructed 
his  agent  to  sell  it  again.  The  agent  oft'ered  to  sell  it  to  the  defendant 
for  ten  dollars,  but  the  defendant  refused  to  buy  it.  The  agent  then 
left  it  with  the  defendant,  who  was  a  blacksmith,  at  his  shop  for  sale 
for  ten  dollars,  authorizing  him  to  keep  his  books  in  it  until  it  was  sold 
or  reclaimed.  The  safe  was  old-fashioned,  of  sheet  iron,  about  three 
feet  square,  having  a  few  pigeon-holes  and  a,  place  for  books,  and  back 
of  the  place  for  books  a  large  crack  in  the  lining.  The  defendant 
shortly  after  the  safe  was  left,  upon  examining  it,  found  secreted  be- 
tween the  sheet-iron  exterior  and  the  wooden  lining  a  roll  of  bills 
amounting  to  $165,  of  the  denomination  of  the  national  bank  bills  which 
have  been  current  for  the  last  ten  or  twelve  years.  Neither  the  plain- 
tiff nor  the  defendant  knew  the  money  was  there  before  it  was  found. 
The  owner  of  the  money  is  still  unknown.  The  defendant  informed 
the  plaintiff's  agent  that  he  had  found  it,  and  offered  it  to  him  for  the 
plaintiff;  but  the  agent  declined  it,  stating  that  it  did  not  belong  to 
either  himself  or  the  plaintiff,  and  advised  the  defendant  to  deposit 
where  it  would  be  drawing  interest  until  the  rightful  owner  appeared. 
The  plaintiff'  was  then  out  of  the  cit>'.  Upon  his  return,  being  inform- 
ed of  the  finding,  he  immediately  called  on  the  defendant  and  asked  for 
the  money,  but  the  defendant  refused  to  give  it  to  him.  He  then,  after 
taking  advice,  demanded  the  return  of  the  safe  and  its  contents,  pre- 
cisely as  they  existed  when  placed  in  the  defendant's  hands.  The  de- 
fendant promptly  gave  up  the  safe,  but  retained  the  money.  The  plain- 
tiff brings  this  action  to  recover  it  or  its  equivalent. 

The  plaintiff  does  not  claim  that  he  acquired,  by  purchasing  the  safe, 
any  right  to  the  money  in  the  safe  as  against  the  owner;  for  he  bought 
the  safe  alone,  not  the  safe  and  its  contents.  See  Merry  v.  Green,  7  M. 
&  W.  623.  But  he  claims  that  as  between  himself  and  the  defendant 
his  is  the  better  right.  The  defendant,  however,  has  the  possession, 
and  therefore  it  is  for  the  plaintiff,  in  order  to  succeed  in  his  action,  to 
prove  his  better  nght. 

The  plaintiff  claims  that  he  is  entitled  to  have  the  money  by  the  right 
of  prior  possession.  But  the  plaintiff  never  had  any  possession  of  the 
money,  except,  unwittingly,  by  having  possession  of  the  safe  which 
contained  it.  Such  possession,  if  possession  it  can  be  called,  does  not 
of  itself  confer  a  right.  The  case  at  bar  is  in  this  view  like  Bridges  v. 
Hawkesworth,  15  Jur.  1079,  21  L.  J.  O.  B.  75,  A.  D.  1851,  7  Eag.  L. 
&  Eq.  424.  In  that  case,  the  plaintiff,  while  in  the  defendant's  shop  on 
business,  picked  up  from  the  floor  a  parcel  containing  bank  notes.  He 
gave  them  to  the  defendant  for  the  owner  if  he  could  be  found.    The 


38 


POSSESSORY  INTERESTS   IN   CHATTELS 


(Ch.3 


owner  could  not  be  found,  and  it  was  held  that  the  plaintiff  as  finder 
was  entitled  to  them,  as  against  the  defendant  as  owner  of  the  shop  in 
which  they  were  found.  "The  notes,"  said  the  court,  "never  were  in 
the  custody  of  the  defendant,  nor  within  the  protection  of  his  house, 
before  they  were  found,  as  they  would  have  been  if  they  had  been  in- 
tentionally deposited  there."  The  same  in  effect  may  be  said  of  the 
notes  in  tlie  case  at  bar;  for  though  they  were  originally  deposited  in 
the  safe  by  design,  they  were  not  so  deposited  in  the  safe,  after  it  be- 
came the  plaintiff's  safe,  so  as  to  be  in  the  protection  of  the  safe  as  his 
safe,  or  so  as  to  affect  him  with  any  responsibility  for  them.  The 
case  at  bar  is  also  in  this  respect  like  Tatum  v.  Sharplcss,  6  Phila.  (Pa.) 
18.  There  it  was  held,  that  a  conductor  who  had  found  money  which 
had  been  lost  in  a  railroad  car  was  entitled  to  it  as  against  the  railroad 
company. 

The  plaintiff  also  claims  that  the  money  was  not  lost  but  designedly 
left  where  it  was  found,  and  that  therefore  as  owner  of  the  safe  he  is 
entitled  to  its  custody.  He  refers  to  cases  in  which  it  has  been  held, 
that  money  or  other  property  voluntarily  laid  down  and  forgotten  is 
not  in  legal  contemplation  lost,  and  that  of  such  money  or  property  the 
owner  of  the  shop  or  place  where  it  is  left  is  the  proper  custodian  rath- 
er than  the  person  who  happens  to  discover  it  first.  State  v.  McCann, 
19  Mo.  249;  Lawrence  v.  State,  1  Humph.  (Tenn.)  228,  34  Am.  Dec. 
644;  McAvoy  v.  Medina,  11  Allen  (Mass.)  549,  87  Am.  Dec.  733.  It 
may  be  questioned  whether  this  distinction  has  not  been  pushed  to  an 
extreme.  See  Kincaid  v.  Eaton,  98  Mass.  139,  93  Am.  Dec.  142.  But, 
however  that  may  be,  we  think  the  money  here,  tliough  designedly  left 
in  the  safe,  was  probably  not  designedly  put  in  the  crevice  or  inter- 
space where  it  was  found,  but  that,  being  left  in  the  safe,  it  probably 
slipped  or  was  accidentally  shoved  into  the  place  where  it  was  found 
without  the  knowledge  of  the  owner,  and  so  was  lost,  in  the  stricter 
sense  of  the  word.  The  money  was  not  simply  deposited  and  forgot- 
ten, but  deposited  and  lost  by  reason  of  a  defect  or  insecurity  in  the 
place  of  deposit. 

The  plaintiff  claims  that  the  finding  was  a  wrongful  act  on  the  part 
of  the  defendant,  and  that  therefore  he  is  entitled  to  recover  die  money 
or  to  have  it  replaced.  We  do  not  so  regard  it.  The  safe  was  left  with 
the  defendant  for  sale.  As  seller  he  would  properly  examine  it  under 
an  implied  permission  to  do  so,  to  qualify  him  the  better  to  act  as  seller. 
Also  under  the  permission  to  use  it  for  his  books,  he  would  have  the 
right  to  inspect  it  to  see  if  it  was  a  fit  depository.  And,  finally,  as  a 
possible  purchaser  he  might  examine  it,  for,  though  he  had  once  de- 
clined to  purchase,-  he  might  on  closer  examination  change  his  mind. 
And  the  defendant,  having  found  in  the  safe  something  which  did  not' 
belong  there,  might,  we  think,  properly  remove  it.  He  certainly  would 
not  be  expected  either  to  sell  the  safe  to  another,  or  to  buy  it  himself 
witliout  first  removing  it.    It  is  not  pretended  tliat  he  used  any  violence 


Sec.  1)  FINDER  39 

or  did  any  harm  to  the  safe.  And  it  is  evident  that  the  idea  that  any 
trespass  or  tort  had  been  committed  did  not  even  occur  to  the  plaintiff's 
agent  when  he  was  first  informed  of  tlie  finding. 

The  general  rule  undoubtedly  is,  that  the  finder  of  lost  property  is 
entitled  to  it  as  against  all  the  world  except  the  real  owner,  and  that  or- 
dinarily the  place  where  it  is  found  does  not  make  any  difference. 
We  cannot  find  anything  in  the  circumstances  of  the  case  at  bar  to  take 
it  out  of  this  rule.^° 


GARDNER  v.  NINETY-NINE  GOLD  COINS. 

(District  Court  of  the  United  States,   District  of  Massacliusetts,  1S99.     Ill 

Fed.  552.) 

[The  libelants  found  the  body  of  a  man  at  sea  in  whose  clothing 
was  a  sum  of  money.  They  took  the  money  and  disposed  of  the 
corpse  by  sinking  it.  They  were  then  awarded  part  of  the  money  by 
way  of  salvage  in  an  earlier  proceeding  in  this  same  case.] 

Lowell,  District  Judge.^^  The  fund  remaining  in  the  registry  of 
the  court  after  the  payment  of  the  salvage  decreed  more  than  two 
years  ago  has  three  claimants:  (1)  The  salvors,  claiming  the  fund  as 
the  finders  of  lost  or  abandoned  goods  whose  owner  is  unknown,  and 
as  having  "such  a  property  as  will  enable  to  keep  it  against  all  but  the 
original  owner."  Armory  v.  Delamirie,  1  Strange,  505 ;  Russell  v. 
Proceeds  of  Forty  Bales  of  Cotton,  Fed.  Cas.  No.  12,154.  (2)  The 
United  States,  claiming  as  successor  to  the  prerogative  rights  of  the 
king  of  England.  Peabody  v.  Proceeds  of  Twenty-Eight  Bags  of 
Cotton,  Fed.  Cas.  No.  10,869.  (3)  The  public  administrator  of  Suf- 
folk county,  who  has  taken  out  letters  of  administration,  pursuant  to 
Pub.  St.  Mass.  c.  131,  §  2,  upon  the  estate  of  the  man  on  whom  the 
coins  were  found.  In  the  petition  and  in  the  letters  the  description 
of  this  man  is  that  given  by  the  salvors,  and  a  name  of  doubtful  spell- 
ing, written  in  a  receipt  found  upon  his  person,  is  assigned  to  him. 
The  evidence  that  this  man  was  the  owner  of  the  property  is  con- 
vincing. 

The  salvors  and  the  United  States  both  admit  that  their  rights,  what- 
ever they  may  be,  are  subordinate  to  the  claim  of  the  original  owner 
of  the  property,  if  a  claim  by  that  owner  be  made  in  this  proceed- 
ing. Does  the  public  administrator  so  represent  the  original  owner 
that  his  intervening  claim  is  effectually  the  claim  of  that  owner?  That 
an  administrator  ordinarily  represents  his  intestate's  rights  of  property 
is  plain.    The  administrator  of  the  original  owner  of  the  jewel  in  Ar- 

10  See  Merrv  v.  Green,  7  M.  &  W.  623  (1S41) ;  Kuyliendall  v.  Fisher,  61  W. 
Va.  87,  56  S.  E.  48,  8  L.  R.  A.  (N.  S.)  94,  11  Ann.  Cas.  700  (1900). 

11  Part  of  tlie  opinion  is  omitted. 


40  POSSESSORY   INTERESTS  IN   CHATTELS  (Cll.  3 

mory  v.  Delamirie  could  have  recovered  the  same  from  the  chimney 
sweep  as  effectually  as  could  the  owner  himself  if  living.  In  what 
respect  does  the  public  administrator  in  this  case  differ  from  an  ordi- 
nary administrator?  He  is  appointed  by  the  same  court,  and  has  sub- 
stantially the  same  duties.  That  he  holds  a  commission  from  the  gov- 
ernor, which  entitles  him  to  apply  for  administration  in  a  case  like 
this,  does  not  make  him  the  less  an  administrator  after  his  appointment 
by  the  probate  court.  The  rights  and  duties  of  an  administrator  do 
not  depend  upon  his  relationship  to  the  intestate  or  upon  the  existence 
of  next  of  kin,  but  upon  his  appointment  by  a  court  of  competent  ju- 
risdiction. It  is  urged  against  the  administrator's  claim  *  *  * 
that  the  claim  of  the  public  administrator  here  is  really  no  more  than 
a  claim  by  the  commonwealth  of  Massachusetts  to  property  in  which 
it  has  no  right.  *  *  *  It  is  true  that  by  virtue  of  Pub.  St.  Mass. 
c.  131,  §§  7,  12,  14.  the  fund,  if  paid  to  the  public  administrator,  may 
ultimately  become  the  property  of  the  commonwealth ;  but  this  might 
happen  if  it  was  paid  to  any  other  administrator.  Pub.  St.  c.  135,  §  3. 
The  condition  under  which  the  commonwealth  is  entitled  to  estate  in  the 
hands  of  a  public  administrator  and  in  the  hands  of  any  other  adminis- 
trator is  substantially  the  same,  viz.  that  no  next  of  kin  can  be  found. 
If  the  deceased  owner  had  been  domiciled  in  Massachusetts,  and 
was  without  next  of  kin,  his  estate  would  certainly  pass  to  the  com- 
monwealth, yet  his  administrator  would  be  entitled  to  a  fund  like  this. 
In  the  case  at  bar  it  is  quite  possible  that  the  deceased  owner's  next 
of  kin,  who  probably  exist,  will  be  discovered  by  the  public  admin- 
istrator. If  a  certainty  that  the  estate  will  eventually  pass  to  the  com- 
monwealth, as  in  the  case  just  put,  does  not  defeat  the  claim  of  the 
administrator,  his  claim  cannot  be  defeated  by  a  mere  possibility  that 
the  commonwealth  will  take.  In  a  sense,  it  may  doubtless  be  said  that 
the  deceased  owner  has  not  been  identified.  His  name  is  in  doubt,  and 
his  body  was  buried  at  sea.  But,  in  the  last  analysis,  identification  al- 
ways differs  in  degree,  and  not  in  kind.  That  a  man's  name  is  in 
doubt,  that  he  is  known  by  different  names,  will  not  prevent  admin- 
istration upon  his  estate;  and  this  court  is  informed  that  the  practice 
here  is  not  uncommon  to  administer  upon  the  estates  of  persons  whose 
names  are  wholly  unknown.  Should  a  guest  staying  in  a  hotel  for- 
eign to  his  domicile  die  suddenly  in  his  room,  and  should  his  name 
and  relatives  be  undiscoverable,  the  money  found  on  his  person  would 
hardly  become  the  property  of  the  chimney  sweep  or  the  chambermaid 
who  should  first  lay  hands  upon  it.  Doulatless  extreme  cases  may  be 
put.  If  treasure  were  dug  up  in  a  field,  so  placed  that  it  had  been 
manifestly  the  property  of  the  unknown  man  with  whose  body  it  had 
been  buried  two  centuries  before,  the  public  administrator,  might  not 
be  entitled  to  the  property,  even  upon  taking  out  letters  upon  the  es- 
tate of  the  skeleton.  To  an  illustration  like  this  it  should  be  answered : 
First,  that  it  is  not  the  case  at  bar;   and,  second,  that  in  the  case  sup- 


Sec.  1)  FINDER  41 

posed  the  probate  court  would  hardly  issue  the  requisite  letters.  In 
Russell  V.  Proceeds  of  Forty  Bales  of  Cotton,  and  in  Peabody  v.  Pro- 
ceeds of  Twenty-Eight  Bags  of  Cotton,  nothing  was  known  of  the 
owners,  and  probably  they  were  alive.     *     *     * 

As  the  administrator  in  this  case  represents  the  estate  and  the  rights 
of  the  undoubted  owner,  the  fund  in  court  must  be  paid  over  to  him. 
The  decree  may  contain  an  express  saving  of  any  right  which  either 
the  salvors  or  the  United  States  have  against  the  fund  while  in  the 
hands  of  the  administrator  or  in  the  treasury  of  the  common  wealth.  ^= 


MULGRAVE  v.  OGDEX. 

(Court  of  Queen's  Bench,  1.591.     Croke  Eliz.  219.) 

Action  sur  trover  of  twenty  barrels  of  butter:  and  counts  that  he 
tarn  negligenter  custodivit  that  they  became  of  little  value.  Upon  this 
it  was  demurred,  and  held  by  all  the  Justices,  that  no  action  upon 
the  case  lieth  in  this  case ;  for  no  law  compelleth  him  that  finds  a 
thing  to  keep  safely ;  as  if  a  man  finds  a  garment  and  sufl:'ers  it  to  be 
ifioth-eaten ;  or  if  one  find  a  horse,  and  giveth  it  no  sustenance ;  but 
if  a  man  find  a  thing  and  useth  it,  he  is  answerable,  for  it  is  conver- 
sion: so  if  he  of  purpose  mis-useth  it;  as  if  one  finds  paper,  and  puts 
it  into  the  water,  etc.,  but  for  negligent  keeping  no  law  punisheth  him. 
Et  adjournatur.^^ 


ISAACK  V.  CLARK. 

(Court  of  King's  Bench,  1615.     2  Bulst.  306.) 

Coke,  Chief  Justice."  *  *  *  wiien  a  man  doth  finde  goods,  it 
hath  been  said,  and  so  commonly  held,  that  if  he  doth  dispossess  him- 
self of  them,  by  this  he  shall  be  discharged,  but  this  is  not  so,  as  ap- 
pears by  12  E.  4,  fol.  13,  for  he  which  findes  goods,  is  bound  to  an- 
swer him  for  them  who  hath  the  property;  and  if  he  deliver  them 
over  to  any  one,  unless  it  be  unto  the  right  owner,  he  shall  be  charged 
for  them,  for  at  the  first  it  is  in  his  election,  whether  he  will  take 

12  Ace:  New  York  &  H.  R.  Co.  v.  Haws,  56  N.  T.  175  (1S74) ;  Kuykendall 
V.  Fisher,  61  W.  Va.  87,  56  S.  E.  48,  8  L.  R.  A.  (N.  S.)  94,  11  Ann.  Cas.  700 
(1906). 

13  A.  lost  a  diamond,  which  B.  found  and  subsequently  returned  badly  nick- 
ed. In  an  action  for  damages,  held,  A.  made  out  a  prima  facie  case  by  show- 
ing that  the  diamond  was  thus  damaged  while  in  B.'s  possession.  .Joy  v. 
Crawford  (Tex.  Civ.  App.)  154  S.  W.  357  (1913). 

nThe  statement  of  facts  and  the  opinions  of  Haughton,  Dodderidge,  and 
Croke,  JJ.,  and  part  of  the  opinion  of  Coke,  C.  J.,  are  omitted. 


42  POSSESSORY  INTERESTS  IN  CHATTELS  (Ch.  3 

them  or  not  into  his  custody,  but  when  he  hath  them,  one  onely  hath 
then  right  unto  them,  and  therefore  he  ought  to  keep  them  safely ; 
if  a  man  therefore  which  iindes  goods,  if  he  be  wise,  he  will  then 
search  out  the  right  owner  of  them,  and  so  deliver  tliem  unto  him ; 
if  the  owner  comes  unto  him,  and  demands  them,  and  he  answers  him, 
that  it  is  not  known  unto  him  whether  he  be  tlie  true  owner  of  the 
goods,  or  not,  and  for  this  cause  he  refuseth  to  deliver  them;  this 
refusal  is  no  conversion,  if  he  do  keep  tliem  for  him."  *  *  *  j{ 
a  man  finds  goods  an  action  upon  the  case  licth  for  his  ill  and  negli- 
gent keeping  of  them,  but  no  trover  and  conversion  because  this  is  but 
a  non  fcsans.'* 


CHASE  V.  CORCORAN. 
(Supreme  Judicial  Court  of  Massachusetts,  1S71.    106  Mass.  286.) 

[The  plaintiff  found  the  defendant's  boat  adrift.  He  took  posses- 
sion of  it,  stored  it  for  two  winters  and  made  necessary  repairs.  The 
defendant  then  took  the  boat  from  the  plaintitT  without  paying  the 
plaintiff  the  sums  so  expended  by  him  although  requested  to  do  so. 
The  plaintiff  sued  to  recover  the  sums  expended  by  him  and  compensa- 
tion for  his  care  and  trouble,  amounting  to  $26.  The  plaintiff  testified 
that  the  boat  when  found  by  him  was  worth  $5.00.  The  trial  judge- 
ruled  that  the  plaintiff  could  not  recover.     Plaintiff  excepted.] 

Gkav,  J.*^  *  *  *  'pi^g  claim  of  the  plaintiff  is  to  be  regulated 
by  the  common  law.  It  is  not  a  claim  for  salvage  for  saving  the  boat 
when  adrift  and  in  danger  on  tide  water;  and  does  not  present  the 
question  whether  the  plaintiff  had  any  lien  upon  the  boat,  or  could  re- 
cover for  salvage  services  in  an  action  at  common  law.  His  claim  is 
for  the  reasonable  expenses  of  keeping  and  repairing  the  boat  after  he 
had  brought  it  to  the  shore;  and  the  single  question,  is,  whether  a 
promise  is  to  be  implied  by  law  from  the  owner  of  a  boat,  upon  taking 
it  from  a  person  who  has  found  it  adrift  on  tide  water  and  brought  it 
ashore,  to  pay  him  for  the  necessary  expenses  of  preserving  the  boat 
while  in  his  possession.  We  are  of  opinion  that  sucli  a  promise  is  to  be 
implied.  The  plaintiff,  as  the  finder  of  the  boat,  had  the  lawful  pos- 
session of  it,  and  the  right  to  what  was  necessary  for  its  preservation. 
Whatever  might  have  been  the  liability  of  the  owner  if  he  had  chosen 
to  let  the  finder  retain  the  boat,  by  taking  it  from  him  he  made  himself 
liable  to  pay  the  reasonable  expenses  incurred  in  keeping  and  repairing 
it.     Nicholson  v.  Chapman,  2  H.  BI.  254,  258,  and  note;  Amory  v. 

10  See  Wood  v.  Pierson,  45  Mich.  31.3,  7  N.  W.  888  (1881). 
18  See  Doiighert.v  v.  Posegate,  3  Iowa,  SS  (ISuG) ;   Watts  v.  Ward,  1  Or.  SO, 
62  Am.  Dec.  299  (18.54). 

1'  Part  of  the  opinion  is  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  43 

Flyn,  10  Johns.  (N.  Y.)  102,  6  Am.  Dec.  316;  Toms  v.  Four  Cribs  of 
Lumber,  Taney,  533,  547;  3  Dane,  Ab.  143;  Story  on  Bailments,  §§ 
121  a,  621  a;  2  Kent,  Com.  (6th  Ed.)  356;  1  Domat,  pt.  1,  lib.  2,  tit.  9, 
art.  2;  Doct.  &  Stud.  c.  51:  Preston  v.  Neale,  12  Gray,  222. 
Exceptions  sustained.^* 


SECTION  2.— BAILOR  AND  BAILEE 
I.  In  Generai, 


WESTERN  TRANSP.  CO.  v.  BARBER. 
(Court  of  Appeals  of  New  York,  1874.    56  N.  Y.  544.) 

[The  plaintiff  as  a  common  carrier  carried  oats  for  Hoyt  &  Co. 
Hoyt  &  Co.  refused  to  receive  the  oats  when  tendered  by  the  carrier. 
The  latter  then  delivered  diem  to  the  defendant,  a  warehouseman,  on 
plaintiff's  account.  On  subsequent  demand  by  Hoyt  &  Co.  the  defend- 
ant delivered  the  oats  to  them.    The  plaintiff  now  brings  trover.] 

GrovEr,  J.^"  [After  holding  that  the  act  of  the  plaintiff  in  deposit- 
ing the  oats  in  the  warehouse  was  tortious  and  put  an  end  to  the  plain- 
tiff's lien  for  freight:] 

The  remaining  question  is  whether  the  defendant,  having  received 
the  property  by  bailment  from  the  plaintiff  and  delivered  the  same  up- 
on demand  to  the  true  owner,  he  can  set  up  the  latter  facts  as  a  defence 
to  an  action  by  the  plaintiff  for  the  conversion  of  the  property. 

The  right  of  a  bailee  to  set  up  title  in  a  third  person,  as  against  the 
claim  of  his  bailor,  has  been  much  considered.  It  is  said  that  neither  a 
wharfinger  nor  warehouse  man  can  deny  the  right  of  the  person  from 
or  for  whom  he  receives  the  property.  That  they  are  the  agents  of  the 
persons  from  whom  they  receive  the  property,  and  cannot  dispute  their 
title.  Edwards  on  Bailments,  305,  306;  Story  on  Bailments,  §§  450, 
482.  This  general  rule  is  sustained  by  numerous  cases,  a  citation  of 
which  is  unnecessary.  It  applies  in  all  cases  where  the  bailee  seeks  to 
avail  himself  of  the,  title  of  a  third  person  for  the  purpose  of  keeping 
the  property  himself  from  the  bailor,  and  to  all  cases  where  the  bailee 
has  not  yielded  to  a  paramount  title  in  another.  The  question  in  this 
case  is  whether  it  applies  in  case  he  has  done  so.  It  does  not  apply 
where  the  property  has  been  taken  from  the  bailee  by  due  process  of 

18  Ace:  Reeder  v.  Anderson's  Adm'rs,  4  Dana  (Ky.)  193  (1836).  For  cases 
dealing  with  tbe  lien  of  a  finder,  see  post,  pp.  55-oy. 

>»The  statement  of  facts  is  rewritten  and  a  part  of  the  opinion  is  omitte'l. 


44  POSSESSOItY   INTEHESTS  IN   CHATTELS  (Cll.  3 

law.  Story  on  Agency,  §§  211,  249;  Bliven  v.  Hudson  River  Railroad, 
36  N.  Y.  403.  Nor  where  the  bailor  has  obtained  possession  felonious- 
ly or  by  force,  or  fraud.  Bates  v.  Stanton,  8  N.  Y.  Super.  Ct.  79 ;  King 
V.  Richards,  6  Whart.  (Pa.)  418,  37  Am.  Dec.  420.  Upon  principle  I 
can  see  no  difference.  As  to  the  right  of  the  bailee  to  deliver  the  jjrop- 
erty  to  the  true  owner  upon  demand  by  him  as  against  his  bailor  having 
no  title,  depending  upon  the  mode  in  which  the  bailor  obtained  posses- 
sion— how  can  this  affect  the  question  ?  The  bailee  could  not  set  up  the 
jus  tertii  against  his  bailor,  however  tortious  the  latter  may  have  ac- 
quired possession,  unless  the  owner  has  claimed  the  property  and  the 
bailee  has  yielded  to  the  claim.  Why  may  he  not  set  up  the  right  under 
the  same  circumstances  when  the  possession  of  his  bailor  was  lawfully 
acquired?  A  bailor  can  confer  upon  his  bailee  no  better  title  than  he 
lias  himself,  except  in  cases  of  negotiating  bills  of  lading  and  like  cases. 
If  the  owner  demands  the  property  of  the  bailee  and  he  refuses  to  de- 
liver it  to  him,  he  is  at  once  liable  to  him  in  an  action  for  its  conversion. 
This  is  a  tort,  and  it  would  be  somewhat  anomalous,  if  the  bailee  should 
shield  himself  from  this  by  delivering  tlie  property  to  the  owner,  that 
he  could  not  show  such  facts  as  a  defence  to  the  groundless  claim  of 
the  bailor  for  the  property.  I  tliink  the  best  considered  cases  hold  that 
the  right  of  a  third  person  to  which  the  bailee  has  yielded,  by  deliver- 
ing the  property,  may  be  interposed  in  all  cases  as  a  defence  to  an  ac- 
tion brought  by  the  bailor,  subsequently,  for  the  property.  When  the 
owner  comes  and  demands  his  property  he  is  entitled  to  its  immediate 
deliver}-,  and  it  is  the  duty  of  the  possessor  to  make  it.  The  law  will 
not  adjudge  the  performance  of  this  duty  tortious  as  against  a  bailor 
having  no  title.  Biddle  v.  Bond,  6  Best  &  Smith,  224,  was  thoroughly 
considered,  and  the  above  conclusions  established  upon  grounds  whicli 
I  think  unanswerable.  See,  also,  White  v.  Bartlett,  9  Bing.  382,  and 
note  a;  Cheesman  v.  Exall,  6  Ex.  341 ;  Dixon  v.  Yates,  27  Eng.  Com. 
Law,  92.     *     *     * 

The  order  appealed  from  reversing  tlie  judgment  recovered  by  the 
plaintiff  and  directing  a  new  trial  must  be  aftirmed  and  judgment  abso- 
lute given  for  the  defendant,  upon  the  stipulation.    All  concur. 

Order  affirmed  and  judgment  accordingly. 


Sec.  2)  BAILOR   AND    BAILEE  45 

KEITH  V.  DE  BUSSIGNEY  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1901.    1T9  Mass.  255,  60  N.  E.  614.) 

Contract  to  recover  the  amount  paid  by  the  plaintiff  to  one  Andrews, 
a  livery  stable  keeper,  on  a  judgment  obtained  by  him  against  her  in 
Andrews  v.  Keith,  reported  in  168  Mass.  558,  47  N.  E.  423,  with  a 
count  on  an  account  annexed  to  recover  a  reasonable  amount  for  the 
board  of  a  horse  from  July  23,  1895,  to  February  6,  1896.  Writ  dated 
January  20,  1898. 

At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  the  following 
facts  appeared:  The  defendants  were  husband  and  wife  and  were 
the  owners  of  the  horse,  which  they  delivered  to  the  plaintiff  under 
the  following  agreement,  signed  by  both  defendants:  "Memorandum 
of  Agreement  made  this  day  of  September  the  17th,  1894,  between 
C.  S.  Keith  and  Mr.  and  Mrs.  Henry  de  Bussigney.  Miss  C.  S.  Keith 
hereby  agrees  to  take  one  horse  belonging  to  said  Mr.  and  Mrs.  de  Bus- 
signey to  keep  and  board  from  the  said  above  date  to  the  first  day 
of  June,  1895,  provided  said  horse  is  suitable  for  ordinary  family  use. 
Said  horse  at  all  times  to  be  properly  fed  and  cared  for,  and  it  is 
further  agreed  that  the  said  C.  S.  Keith  is  to  be  in  no  way  responsible 
for  the  safety  of  said  horse  except  in  case  of  neglect  or  abuse,  and 
to  report  any  sickness  or  trouble  that  may  occur  to  its  owners,  Mr. 
and  Mrs.  Henry  de  Bussigney,  within  a  reasonable  time.  Compen- 
sation to  Miss  C.  S.  Keith  to  be  the  use  of  said  horse  during  the 
above  specified  time  and  none  other.    Sharon,  September  17,  1894." 

At  the  end  of  the  term  the  plaintiff  sent  the  horse  back  to  the  de- 
fendants, who  refused  to  receive  it,  declaring  that  the  plaintiff  had  in- 
jured it  by  want  of  proi>er  food  and  care  and  by  over  use;  and 
after  some  correspondence  with  the  defendants  the  plaintiff'  on  July 
23,  1895,  put  the  horse  in  the  livery  stable  of  Andrews,  and  notified 
the  defendants  that  they  would  be  responsible  for  its  board.  The  de- 
fendants refused  to  be  responsible  for  any  expense  whatever  in  keep- 
ing the  horse  and  suggested  that  the  plaintiff  should  kill  it.  Andrews 
kept  the  horse  until  February  6,  1896,  and  then  brought  action  against 
the  plaintiff  for  its  keep,  and  recovered  in  Andrews  v.  Keith,  mention- 
ed above.     *     *     * '" 

Knowlton,  J.  The  evidence  introduced  and  offered  had  no  ten- 
dency to  prove  a  conversion  of  the  horse  by  the  plaintiff.  It  went 
no  further  than  to  show  that  the  horse  had  been  used  in  ploughing 
greensward  and  in  drawing  heavy  loads  to  Boston,  and  that  it  was 
not  in  good  condition  when  the  plaintiff  endeavored  to  return  it.  Even 
if  a  jury  might  have  found  from  the  evidence  that  the  plaintiff  had 
not  properly  used  and  fed  the  horse,  they  could  not  have  found  that 

20  The  statement  of  facts  Is  abridged. 


46  POSSESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

she  had  exercised  dominion  over  it  adverse  to  the  defendant's  rights, 
in  such  a  way  as  to  make  her  liable  for  a  conversion  of  it.  At  most  it 
would  only  have  warranted  a  finding  of  negligence  or  breach  of  con- 
tract on  the  part  of  the  plaintiff,  for  which  she  was  liable  in  damages. 

The  horse  remained  the  property  of  the  defendants,  and  it  was  their 
duty  to  receive  it  when  the  plaintiff  brought  it  back.  On  the  issue 
of  liability  the  evidence  was  rightly  excluded,  and  the  first  two  of 
the  defendants'  requests  for  instructions  were  rightly  refused. 

The  tliird  request  was  as  follows:  "The  plaintiff,  after  the  defend- 
ants refused  to  receive  the  horse,  even  if  there  was  no  fault  on  her 
part  and  she  had  performed  all  the  obligations  imposed  on  her  by 
law  or  by  the  contract,  should  do  with  it  as  persons  with  ordinary 
experience  and  prudence  would  have  done  with  it,  having  reference 
to  its  value  and  all  other  circumstances.  If  the  horse  was  of  little 
value,  the  fact  that  the  defendants  refused  to  receive  it  would  not  jus- 
tify the  plaintiff  in  keeping  or  boarding  it  for  a  long  time  or  at  a 
relatively  great  expense,  either  in  her  own  stable  or  elsewhere.  She 
should,  after  a  reasonable  time,  have  taken  further  steps  to  deter- 
mine what  disposition  should  be  made  of  the  horse,  or  have  taken 
means  to  dispose  of  it  as  she  could  have  done  under  the  statutes  of 
this  Commonwealth."  The  judge  refused  to  give  this  instruction,  and 
ruled  that  the  only  question  for  the  jury  to  determine  was  what  was 
a  reasonable  sum  for  the  keeping  of  the  horse  after  the  time  when 
the  plaintiff  offered  to  return  it  and  the  defendants  refused  to  take  it 
back. 

We  are  of  opinion  that  this  ruling  was  wrong.  This  was  the  sit- 
uation of  the  parties.  The  plaintiff'  had  received  the  defendants'  horse 
under  a  bailment  for  hire,  by  the  terms  of  which  she  was  to  have 
the  use  of  it  for  its  board  and  keeping.  The  time  at  which  this  bail- 
ment was  to  terminate  had  arrived,  and  tlie  plaintiff  had  taken  the 
horse  back  to  the  defendants  and  they  had  refused  to  receive  it.  There 
was  no  contract  at  any  time  by  which  she  was  to  board  the  horse  at 
the  defendants'  expense.  They  denied  that  they  had  any  interest  in 
the  horse,  contended  that  she  had  converted  it  to  her  own  use,  and 
virtually  forbade  her  to  do  or  expend  anything  on  their  account  for 
the  care  or  preservation  of  it. 

There  are  at  least  two  possible  opinions  as  to  the  legal  relations  of 
the  parties  and  the  principles  of  law  by  which  tlieir  rights  are  to  be 
determined.  One  is  that  suggested  by  the  cases  of  Whiting  v.  Sul- 
livan, 7  Mass.  107,  Earle  v.  Cobum,  130  Mass.  596,  and  Putnam  v. 
Glidden,  159  Mass.  47,  34  N.  E.  81,  38  Am.  St.  Rep.  394.  In  this 
view  the  rules  of  law  applicable  to  the  case  may  be  stated  as  follows : 
It  is  settled  that  under  circumstances  like  these  in  this  case  the  law 
will  not  imply  a  contract  to  reimburse  one  for  the  care  of  property 
against  an  owner  who  has  expressly  or  impliedly  declined  to  permit 
sych  care  to  be  given  on  his  account.    No  different  principle  is  applied 


Sec.  2)  BAILOR   AND    BAILEE  47 

when  the  property  is  a  Hve  animal  from  that  appHcable  to  ordinary 
goods.  In  each  of  the  three  cases  cited  the  owner  of  a  horse  which 
was  in  possession  of  another  person  refused  to  receive  it,  and  the  court 
held  that  he  was  not  liable  for  its  keeping  to  the  person  in  whose 
possession  it  was  left.  The  rule  is  that  one  cannot  be  held  liable  on 
an  implied  contract  to  pay  for  that  which  he  declines  to  permit  to  be 
done  on  his  account.  The  exception  to  the  rule  is  that  when  the  law 
imposes  upon  one  an  obligation  to  do  something  which  he  declines  to 
do,  and  which  must  be  done  to  meet  some  legal  requirement,  the  law 
in  some  cases  treats  i)erformance  by  another  as  performance  for  him, 
and  implies  a  contract  on  his  part  to  pay  for  it.  A  familiar  illustra- 
tion of  this  is  seen  when  the  law  holds  one  liable  for  necessaries,  fur- 
nished to  his  wife,  if  he  has  witliout  cause  refused  to  provide  for 
her;  but  there  is  no  such  obligation  upon  one  to  retain  and  preserve 
his  property,  whether  it  be  live  animals  or  anything  else.  He  may 
destroy  or  abandon  it,  provided  he  does  not  thereby  imperil  the  per- 
son or  property  of  another. 

In  the  present  case  the  plaintiflf  had  no  right,  against  the  will  of  the 
defendants,  to  expend  money  for  the  care  and  presentation  of  their 
horse  on  their  account.  The  only  liability  of  the  defendants  to  her 
was  a  liability  in  damages  for  their  refusal  to  receive  their  horse  when 
she  returned  it.  By  the  terms  of  the  original  bailment  they  impliedly 
agreed  to  receive  it  and  relieve  the  plaintiff  of  it  when  she  should 
bring  it  back,  after  the  time  for  her  keeping  it  had  expired.  Their 
refusal  to  receive  it  was  a  breach  of  their  contract,  and  for  such  dam- 
age as  resulted  directly  from  their  refusal  the  plaintiff  can  recover. 
But  that  damage  includes  only  the  loss  or  expense  that  has  fallen  or 
necessarily  would  fall  upon  the  plaintiff  in  ridding  herself  of  the  horse 
in  a  reasonable  way.  It  would  not  include  compensation  for  the  board 
of  the  horse  for  an  indefinite  time  for  the  purpose  of  preserving  it  for 
the  defendants.  She  was  under  no  contract  or  obligation  to  keep 
the  horse  for  their  benefit,  and  if  she  so  kept  it,  or  if  she  kept  it 
for  her  own  benefit,  because  she  was  doubtful  how  the  dispute  ulti- 
mately would  be  decided,  such  keeping  was  not  a  direct  result  of  the 
defendants'  breach  of  contract,  and  she  cannot  charge  them  with  the 
expense  of  it. 

The  plaintiff  in  this  case  had  not  the  full  right  of  an  involuntary 
depositary,  who  finds  property  whose  owner  is  unknown.  The  finder 
of  property  may  do  that  which  is  reasonably  necessary  for  its  preserva- 
tion to  prevent  loss,  and  hold  the  owner  responsible  on  the  ground 
of  im.piied  agency.  Preston  v.  Neale,  12  Gray,  222.  See  Field  v. 
Roosa,  159  Mass.  128,  132,  34  X.  E.  77.  But  if  the  owner  is  known 
and  forbids  incurring  expense  at  his  charge,  no  contract  can  be  implied 
against  him. 

In  the  other  view  of  the  case  the  law  may  be  stated  tlius :  On  the 
refusal  of  the  defendants  to  receive  the  horse  the  relation  of  bailor 


48 


POSSESSORY   IXTEKESTS   IN   CHATTELS 


(Ch.  3 


and  bailee  still  continued  (Andrews  v.  Keith,  168  Mass.  558,  47  N.  E. 
423),  but  the  obligation  of  the  plaintiff  to  set  the  use  of  the  horse 
against  its  keeping  was  at  an  end.  It  was  a  necessary  incident  of  the 
relation  of  the  parties  that  she  should  be  entitled  to  charge  the  de- 
fendants for  the  exj^ense  which  formerly  she  had  been  bound  to  bear, 
lx;cause  that  expense  had  to  be  incurred  by  her  so  long  as  she  remained 
the  defendants'  bailee. 

But  the  defendants'  liability  under  this  view  is  no  greater  than  as 
stated  under  the  other ;  for  she  was  bound  to  do  that  which  was  rea- 
sonable under  the  circumstances  to  keep  the  liability  as  small  as  pos- 
sible. There  is  a  line  of  decisions  which  establish  the  doctrine  that 
where  one  party  has  broken  an  executory  contract,  the  other  who  is 
in  the  right  cannot  go  on  indefinitely  as  if  the  contract  still  were  un- 
broken, but  is  bound  to  do  what  he  reasonably  can  to  stop  the  dam- 
ages for  which  the  first  party  will  be  liable  in  consequence  of  his 
breach.  Collins  v.  Delaporte,  115  Mass.  159,  162;  Clark  v.  Mar- 
siglia,  1  Denio  (N.  Y.)  317,  43  Am.  Dec.  670;  Danforth  v.  Walker,  37 
Vt.  239 ;  Allen  v.  Jarvis,  20  Conn.  38 ;  Cort  v.  Ambergate  Railway, 
17  O.  B.  127. 

In  either  view  the  plaintiff  was  bound  to  make  such  disposition 
of  the  horse  as  would  terminate  the  defendants'  liability  for  damages 
or  for  expenses  as  soon  as  she  reasonably  could  do  it. 

Exceptions  sustained. 


II.  Lien 


(A)  Scope  of  Lien 

CHAPMAN  V.  ALLEN. 
(Court  of  King's  Bench,  1632.     Cro.  Car.  271.) 

Action  of  trover  of  five  kine.  Upon  not  guilty  pleaded,  a  special 
verdict  was  found,  that  one  Belgrave  was  possessed  of  those  five  kine, 
and  put  them  to  pasturage  with  the  defendant,  and  agreed  to  pay  to 
him  twelve  pence  for  every  cow  weekly  as  long  as  they  remained  with 
him  at  pasture ;  and  that  afterwards  Belgrave  sold  them  to  the  plain- 
till,  and  he  required  them  of  the  defendant,  who  refused  to  deliver 
them  to  the  plaintiff,  unless  he  would  pay  for  the  pasturage  of  them 
for  the  time  that  they  had  been  with  him,  which  amounted  to  ten 
pounds :  afterwards  one  Foster  paying  him  the  said  ten  pounds  by 
the  appointment  of  Belgrave,  he  delivered  the  five  beasts  to  Foster : 
and  if  super  totam  materiam  he  be  guilty,  tlney  find  for  the  plaintiff, 
and  damages  twenty-five  pounds ;  and  if,  etc.  then  for  the  defendant. 

Jones,  Justice,  and  myself  (absentibus  cseteris  Justiciariorum),  con- 
ceived, that  this  denial  upon  demand,  and  delivery  of  them  to  Foster, 


Sec.  2)  BAILOB    AND    BAILEE  49 

was  a  conversion,  and  that  he  may  not  detain  the  cattle  against  him 
who  bought  them  until  the  ten  pounds  be  paid,  but  is  inforced  to 
have  his  action  against  him  who  put  them  to  pasturage.  And  it  is 
not  like  to  the  cases  of  an  innkeeper  or  taylor;  they  may  retain  the 
horse  or  garment  delivered  them  until  tliey  be  satisfied,  but  not  when 
one  receives  horses  or  kine  or  other  cattle  to  pasturage,  paying  for 
them  a  weekly  sum,  unless  there  be  such  an  agreement  betwixt  them. 
Whereupon  rule  was  given  that  judgment  should  be  entered  for  the 
plaintiff. 


SKINNER  V.  UPSHAW. 

(Court  of  Queen's  Bench,  1702.    2  Ld.  Eaym.  752.) 

The  plaintiff  brought  an  action  of  trover  against  the  defendant, 
being  a  common  carrier,  for  goods  delivered  to  him  to  carry,  etc. 
Upon  not  guilty  pleaded,  the  defendant  gave  in  evidence,  that  he  of- 
fered to  deliver  the  goods  to  the  plaintiff,  if  he  would  pay  him 
his  hire ;  but  that  the  plaintiff  refused,  etc.  and  therefore  he  retained 
them.  And  it  was  ruled  by  HoLT,  Chief  Justice,  at  Guildhall  (the 
case  being  tried  before  him  there),  May  12,  1  Ann.  Reg.  1702,  that  a 
carrier  may  retain  the  goods  for  his  hire ;  and  upon  direction,  the  de- 
fendant had  a  verdict  given  for  him. 


Ex  parte  BUSH. 
(Court  of  Chancery,  1734.    7  Viner's  Abridgment,  74.) 

An  attorney  had  been  employed  by  one  who  became  bankrupt.  As- 
signees petition  to  have  up  papers  and  that  the  attorney  might  come 
in  for  his  demands  pari  passu  with  other  creditors. 

Lord  Chancellor  [Talbot]. f  The  attorney  hath  a  lien  upon  the 
papers  in  the  same  manner  against  assignees  as  against  the  bankrupt, 
and  though  it  doth  not  arise  by  any  express  contract  or  agreement  yet 
it  is  as  effectual,  being  an  implied  contract  by  law.     *     *     * 

tPart  of  the  opinion  is  omitted. 
Big.Pees.Pbop. — i 


50  POSSESSORY  INTERESTS   IN   CHATTELS  (Ch.  3 

KRUGER  V.  WILCOX. 

(Court  of  Chancerj',  1755.     1  Anib.  252.) 

This  cause  coming  on  for  further  directions,  the  case  was : 

Mico  was  general  agent  in  England  for  Watkins,  who  was  a  mer- 
chant abroad,  and  at  different  times  had  received  considerable  con- 
signments of  goods,  and  upon  the  balance  of  accounts  was  in  dis- 
burse. Afterwards  Watkins  consigned  to  him  a  parcel  of  logwood, 
for  which  he  paid  the  charges,  etc.  Watkins  coming  to  England, 
Mico  said,  as  he  was  here,  he  might  dispose  of  tlie  goods  himself: 
Watkins  accordingly  employs  a  broker  to  sell  them,  and  ]\Iico  tells 
the  broker,  that  \Vatkins  intends  to  sell  them  himself,  to  save  commis- 
sion ;  and  Mico  gave  orders  to  the  warehouseman,  to  deliver  the  goods 
to  that  broker.  The  broker  sells  them,  and  makes  out  bills  of  parcels 
to  Watkins;  and  opens  an  account  with  Watkins,  but  takes  no  no- 
tice of  Mico. 

After  the  goods  were  sold,  Mico  begins  to  suspect  Watkins's  cir- 
cumstances, and  resorts  to  the  broker,  to  know  whether  he  has  opened 
an  account  with  Watkins. 

The  great  question  in  the  cause  was,  Supposing  Mico  had  a  lien 
on  these  goods  and  produce,  so  as  to  be  intitled  to  retain  them  for 
the  balance  of  the  account ;   whether  he  has  not  parted  with  that  right  ? 

After  argument  at  the  bar.  Lord  Chancellor  adjourned  the  cause  to 
the  27th,  and  desired  the  four  merchants,  who  were  examined  in  the 
cause  on  the  different  sides,  might  attend  in  court,  in  order  to  be  con- 
sulted by  him  upon  die  point.  And  accordingly  this  day  they  attend- 
ed, viz.  ]Mr.  Alderman  Baker  and  Bethell,  and  Mr.  Willetts  and  Foner- 
eau :  and  after  having  asked  them  several  questions,  upon  the  cus- 
tom and  usage  of  merchants  relating  to  the  matter  in  doubt,  his  Lord- 
ship gave  his  opinion  with  great  clearness,  as  follows : 

Lord  HardwickE,  Chancellor.-^  This  is  a  case  of  bankruptcy,  in 
which  this  Court  always  inclines  to  equality;  yet  if  any  person  has 
a  specific  lien,  or  a  special  property  in  goods,  which  is  clear  and  plain, 
it  shall  be  reserved  to  him,  notwithstanding  the  bankruptcy. 

Question  is.  Whether,  in  this  case,  Mico,  is  intitled  to  a  specific  lien, 
and  consequently,  a  preference  in  point  of  satisfaction  out  of  the 
money  arising  by  sale  of  these  goods? 

Two  things  are  to  be  considered : 

1st,  What  lien  a  factor  gains  on  goods  consigned  to  him  by  a  mer- 
chant abroad?  and  whether  Mico  gained  such  lien  in  this  case? 

2d,  If  he  did,  Whether  he  has  done  any  thing  to  part  with  it? 

As  to  1st.  All  the  four  merchants,  both  in  their  examination  in 
tlie  cause,  and  now  in  Court,  agree,  that  if  there  is  a  course  of  deal- 

"  Part  of  tbe  opiuiou  is  omitted. 


Sec.  2)  BAILOK    AND    BAILEE  51 

ings  and  general  account  between  the  merchant  and  factor,  and  a  bal- 
ance is  due  to  the  factor,  he  may  retain  the  ship  and  goods,  or  prod- 
uce, for  such  balance  of  the  general  account,  as  well  as  for  the  charg- 
es, customs,  etc.,  paid  on  the  account  of  the  particular  cargo.  They 
consider  it  as  an  interest  in  the  specific  things,  and  make  them  arti- 
cles in  the  general  account.  Whether  this  was  ever  allowed  in  trover 
at  law,  where  the  goods  were  turned  into  money,  I  cannot  say ;  nor 
can  I  find  any  such  case.  I  have  no  doubt,  it  would  be  so  in  this  Court, 
if  the  goods  remained  in  specie;  nor  do  I  doubt  of  its  being  so,  where 
they  are  turned  into  money.^^     *     *     * 


DAVIS  V.  BOWSHER. 

(Court  of  King's  Bench,  1794.     5  Term  R.  488.) 

This  was  an  action  of  assumpsit  by  the  plaintiffs  as  indorsees  of  a 
bill  of  exchange  for  £635.  10s.  against  the  defendant  as  drawer.  The 
defendant  drew  the  bill  in  question  on  one  Ames,  payable  to  Cook, 
from  whom  he  received  no  consideration  for  it.  Cook  was  a  trader 
at  Bristol,  and  kept  an  account  with  the  plaintiffs,  who  were  bankers 
in  the  same  place.  The  course  of  dealing  between  them  was  this : 
Cook  lodged  bills  payable  at  future  days  with  the  plaintiffs  from  time 
to  time,  and  drew  upon  them  for  any  money  he  wanted  in  advance ; 
and  the  plaintiffs  charged  no  interest  on  these  advances,  but  used  to 
select  out  of  the  bills  in  their  hands  such  as  they  pleased  and  were 
nearest  to  the  sum  advanced,  and  discounted  these  bills,  debiting  Cook 
with  tlie  amount  of  such  discount  in  his  account.  On  the  26th  Feb- 
ruary the  balance  on  Cook's  account  with  the  plaintiffs  was  £103.  in 
his  favour.  On  the  27th  he  directed  his  clerk  to  pay  in  to  the  plain- 
tiffs other  bills  to  the  amount  of  about  £3000.,  which  was  done;  and 
he  applied  for  another  advance,  which  the  plaintiffs  at  first  refused, 
but  they  afterwards  consented  to  let  him  have  about  £1400.  and  actu- 
ally entered  the  discount  on  such  of  the  bills  as  they  selected,  amongst 
which  the  bill  in  question  was  not  one.  And  on  the  plaintiff's'  re- 
fusing to  make  Cook  any  further  advance,  he  demanded  this  and  the 
other  bills  which  had  not  been  discounted,  none  of  which  were  then 


2  2  A.  was  B.'s  agent  for  the  sale  of  100  bales  of  hops,  16  hales  of  which 
still  remained  in  A.'s  possession.  B.  converted  certain  property  belonging  to 
A.  Held,  A.  has  no  lien  upon  the  hops  still  remaining  in  his  possession  for 
the  value  of  the  property  so  converted.  Tliacher  v.  Hannahs,  27  N.  Y.  Super. 
Ct.  407  (1866).  See  Houghton  v.  Matthews,  3  B.  &  P.  485  (1803) ;  Brander  v. 
Phillips,  10  Pet.  121,  10  L.  Ed.  909  (1S42). 

A.  was  B.'s  factor  and  owed  B.  $1,.500  upon  a  balance  of  accounts.  B.  con- 
signed goods  to  A.  upon  which  A.  paid  .f400.  B.  replevied  the  goods.  Held, 
A.  has  no  lien  thereon.  Enoch  v.  Wehrkamp,  16  N.  Y.  Super.  Ct,  398  (185S) ; 
ace:   McGraft  v.  Kugee,  60  Wis.  400,  19  N.  \V.  530,  50  Am.  Rep.  378  (1884). 


52  POSSESSOUY   INTEUESTS   IN   CHATTELS  (Cll.  li 

due:  but  the  plaintiffs  refused  to  deliver  any  of  thcin  up,  alleging  their 
right  to  detain  them  all,  in  case  any  of  the  discounted  bills  shouUl 
prove  bad.  Those  discounted  bills  had  longer  to  run  than  the  bill  in 
question.  At  this  time  none  of  the  discounted  bills  had  been  dis- 
honoured ;  though  some  of  them,  beyond  the  amount  of  the  present 
bill,  afterwards  were  so ;  and  at  the  time  of  the  demand  and  refusal 
the  sums  which  the  plaintiffs  had  advanced  to  Cook  were  considera- 
bly more  than  covered  by  the  amount  of  the  discounted  bills  in  their 
hands,  in  the  event  of  their  proving  to  be  good  bills.  Before  this  ac- 
tion was  brought  Cook  became  a  bankrupt,  and  the  plaintiffs  proved 
their  debt  under  his  commission  for  the  balance  of  iheir  account,  and 
in  the  affidavit,  usual  upon  such  occasions,  they  swore  that  they  had 
no  security  for  their  debt,  except  certain  bills  which  they  specified, 
and  which  only  comprehended  the  discounted  bills,  and  not  the  bill 
in  question.  There  was  also  some  evidence  at  the  trial  of  the  general 
custom  of  the  bankers  at  Bristol  to  keep  their  accounts  in  the  same 
manner  as  the  course  of  dealing  shewn  between  the  plaintiffs  and 
Cook.     *     *     * 

Lord  Kenyon,  C.  J.*'  I  disclaim  grounding  my  opinion  upon  any 
particular  law  applicable  to  the  City  of  Bristol  only:  I  am  clearly  of 
opinion  that  by  the  general  law  of  the  land  a  banker  has  a  general  lien 
upon  all  the  securities  in  his  hands  belonging  to  any  particular  per- 
son for  his  general  balance,  unless  there  be  evidence  to  shew  that  he 
received  any  particular  security  under  special  circumstances,  which 
would  take  it  out  of  the  common  rule.  But  it  is  taken  for  granted 
by  the  counsel  in  support  of  the  rule,  that  the  party  had  a  right  to  de- 
mand of  the  bankers  certain  bills,  which  were  not  discounted,  with- 
out paying  their  general  balance ;  and  the  whole  argument  is  built  on 
that  mistake.  I  think  he  had  only  a  right  to  demand  this  bill  sub 
modo,  namely,  on  paying  all  that  was  due  to  the  bankers :  for  wher- 
ever a  banker  has  advanced  money  to  another,  he  has  a  lien  on  all  the 
paper  securities  which  come  into  his  hands  for  the  amount  of  his  gen- 
eral balance.  It  has  been  urged  that  the  bankers  abandoned  their  gen- 
eral lien  in  this  case,  by  applying  the  money  advanced  to  the  discount 
of  a  particular  bill ;  but  nothing  appears  to  warrant  such  a  supposi- 
tion. So  long  as  they  were  in  advance  upon  the  general  account,  they 
had  a  right  to  charge  interest  whether  in  one  shape  or  another.  *  *  * 
It  is  very  proper  that  there  should  be  a  known  rule  to  govern  the  con- 
duct of  all  persons  of  this  description,  whose  dealings  are  very  exten- 
sive; and  that  rule  is,  that  no  person  can  take  any  paper  securities 
out  of  the  hands  of  his  banker,  without  paying  him  his  general  bal- 
ance, unless  such  securities  were  delivered  under  a  particular  agree- 
ment, which  enables  him  so  to  do.  If  we  were  to  set  aside  this  ver- 
dict, we  should  unsettle  that  which  has  always  been  considered  as  the 

23  The  statement  of  facts  is  abridged,  part  of  the  opinion  of  Lord  Kenyon, 
C.  J.,  and  the  full  opinions  of  Ashhurst  and  Grose,  JJ.,  are  omitted. 


Sec.  2)  BAILOR   AND   BAILEE  53 

law  on  this  subject,  and  the  constantly  received  course  of  trade  found- 
ed upon  that  law.  I  am  therefore  clearly  of  opinion  that  we  ought 
not  to  treat  this  even  as  a  doubtful  question,  but  that  we  should  dis- 
charge the  rule  for  a  new  trial.'* 


HURLBERT  v.  BRIGHAM. 

(Supreme  Court  of  Vermont,  1SS3.    56  Vt.  3CS.) 

Ross,  J.^°  The  plaintiff  seeks  to  recover  the  amount  of  a  judgment 
recovered  in  his  favor  as  administrator  of  the  estate  of  Chloe  D. 
Spooner,  which  the  defendants,  attorneys  for  him,  and  Mrs.  Spooner 
in  the  suit,  collected ;  and  retained  the  money.  The  suit  was  for  the 
recovery  of  property  which  belonged  to  Mrs.  Spooner,  and  was  com- 
menced by  her  while  in  life,  and  subsequently  prosecuted  to  judgment 
by  the  plaintiff,  as  administrator  of  her  estate.  The  defendants  were 
the  attorneys  who  prosecuted  that  suit  to  judgment,  and  who  had  also 
been  employed  in  other  suits  by  Mrs.  Spooner,  and  by  the  plaintiff 
as  administrator  of  her  estate.  The  defendants  claim  to  hold  the 
money  thus  received  by  them  in  payment  and  satisfaction  of  the  gen- 
eral balance  due  them  for  legal  services,  rendered  for  Mrs.  Spooner 
while  in  Hfe,  and  for  her  estate  subsequently  to  her  decease.  The  de- 
fendants did  not  present  to,  and  have  allowed  by,  the  commissioners 
on  the  estate  of  Chloe  D.  Spooner,  that  part  of  their  claim  for  legal 
services  which  accrued  in  her  lifetime. 

I.  It  is  contended  by  the  estate  that  that  portion  of  the  defendant's 
claim  for  legal  services  which  accrued  in  the  lifetime  of  Mrs.  Spooner 
is  barred  by  their  failure  to  present  and  have  it  allowed  by  the  com- 
missioners on  her  estate.  This  contention  would  be  sustained  if  this 
were  an  action  by  the  defendants  to  recover  for  such  services.  But 
the  defendants  claim  that  they  had  a  lien  at  common  law  upon  the 
money  which  came  into  their  hands  in  the  course  of  their  employment 
as  attorneys,  and  that  they  had  the  right  to  retain  the  money  until  their 
claim  for  services,  both  before  and  after  the  decease  of  Mrs.  Spooner, 
was  satisfied.  Liens  upon  property  belonging  to  an  estate,  whether 
created  by  mortgage,  or  pledge,  whether  upon  real  or  personal  proi>- 
erty,  are  not  discharged  by  failure  to  have  the  debts,  for  which  the 
property  is  held,  allowed  by  the  commissioners  on  the  estate.  Doubt- 
less, to  render  the  pledge  of  personal  property  available  in  such  a  case, 
it  must  be  in  the  possession  of  the  pledgee.     Such  allowance  is  only 

2*  It  was  held  in  Naylor  v.  Mangles,  1  Esp.  109  (1794),  that  a  wharfinger 
has  a  general  lien. 

A  packer  lias  a  general  lien.  Ex  parte  Deeze,  1  AtUyns,  228  (174S) ;  In  re 
Witt,  L.  R.  2  Ch.  Div.  4S9  (1876). 

25  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


54 


POSSESSORY  INTERESTS  IN  CHATTELS 


(Ch.3 


necessary  to  secure  a  dividend,  or  payment  in  full,  out  of  the  estate. 
The  lien  withholds  so  much  of  the  property  from  the  estate  as  is  thus 
pledged  to  the  extent  of  the  debt  for  which  it  is  pledged.  The  right 
to  enforce  payment  from  the  property  pledged,  is  not  affected  by  fail- 
ure to  have  the  debt  allowed  by  the  commissioners  on  the  estate ;  but 
the  right  to  participate  with  the  creditors  of  the  estate  in  a  dividend 
declared  by  the  Probate  Court  is  thereby  lost.^°     *     *     * 

II.  It  is  further  contended  by  the  plaintiff  that  at  most  the  defend- 
ants can  only  retain  from  the  money  collected,  the  amount  of  the  tax- 
able costs,  for  their  services  in  the  suit  in  which  the  money  was  re- 
covered. *  *  *  This  contention  would  prevail,  if  the  defendants 
were  asserting  only  what  is  called  an  attorney's  charging  lien  upon  the 
judgment  which  had  been  or  might  be  recovered  in  the  suit  liy  aid  of 
their  services ;  that  is,  if  they  came  to  the  court,  to  have  their  serv- 
ices and  disbursements  made  a  charge  upon  whatever  judgment  might 
be  recovered  in  the  suit,  so  as  to  protect  themselves  against  an  assign- 
ment of  the  claim  in  prosecution,  or  a  settlement  of  it,  before  judg- 
ment; or  to  have  them  made  a  charge  upon  the  judgment  already  re- 
covered so  as  to  protect  them  against  an  assignment  of  the  judgment, 
or  its  payment  to  the  plaintiff.  This  protection  and  lien  the  attorney 
can  acquire  and  assert  by  filing  a  claim  of  such  lien  in  the  court  where 
the  cause  is  pending,  or  judgment  recovered,  and  by  giving  notice 
thereof  to  the  defendants  in  the  cause.  Therefore,  if  the  suit  be  for 
the  recovery  of  an  undisputed  debt,  and  not  for  a  tort,  to  the  extent  of 
such  lien  the  court  will  protect  him  against  an  assignment,  or  settle- 
ment of  the  claim  in  suit,  or  payment  of  the  judgment  when  recov- 
ered, without  first  providing  for  payment  for  his  services,  and  dis- 
bursements in  that  cause.  *  *  *  g^j.  jj-|g  jj^^  recognizes  in  favor 
of  attorneys  not  only  a  charging  lien,  as  already  set  forth,  but  a  re- 
taining lien.  The  two  liens,  their  nature,  extent,  and  distinguishing 
characteristics,  are  clearly  set  forth  in  Wharton's  Agents  and  Agency, 
§§  623  to  630.  The  failure  to  distinguish  between  the  two  has  led  to 
an  apparent,  though  not  real,  conflict  and  confusion  in  the  decisions 
on  this  subject.  By  a  retaining  lien  an  attorney  has  the  right  to  re- 
tain money  or  documents, — such  as  deeds,  notes,  and  other  papers, — 
which  come  into  his  hands,  professionally  for  collection,  or  other  pro- 
fessional action,  for  the  payment  of  whatever  is  due  him  for  profes- 
sional services,  whether  bestowed  upon  the  particular  thing  retained 
or  otherwise.  *  *  *  Hence  at  common  law,  as  recognized  by  the 
decisions  of  the  courts  of  England  and  of  this  court,  the  defendants 
had  the  right  to  retain  from  the  money  in  their  hands  enough  to  pay 
the  general  balance  due  them  for  professional  services  for  the  intes- 
tate, and  for  her  estate.  The  plaintiff  discharged  the  defendants  in 
one  of  the  suits  after  they  refused  to  pay  the  money  collected,  then 


2«  A  lien  may  be  asserted  against  goods,  even  though  they  are  exempt  from 
execution.     Swan  v.  Bournes,  47  Iowa,  501,  29  Am.  Rep.  492  (1877). 


Sec.  2)  BAILOR    AND    BAILEE  55 

in  their  hands,  to  him.  This  he  had  the  right  to  do,  ina?much  as  they 
then  had  in  their  hands  money  more  than  enough  to  satisfy  the  gen- 
eral balance  then  their  due.  Whether  a  client  has  the  right  to  dis- 
charge an  attorney  from  a  suit,  in  which  he  has  a  claim  for  unpaid 
services,  without  first  tendering  payment  for  such  services,  is  not  in- 
volved in  the  decision  of  this  case,  and  no  opinion  is  expressed  in  re- 
gard to  it.  On  the  facts  found  by  the  referee,  and  the  law  applicable 
thereto,  the  pro  forma  judgment  of  the  County  Court  is  reversed,  and 
judgment  rendered  for  the  plaintiff  to  recover  the  sum  of  sixteen 
57-100  dollars  [this  being  the  balance  due  after  deducting  the  at- 
torney's charges],  with  interest  from  April  26,  1881,  and  costs,  and 
to  have  a  certified  execution  therefor.^' 


NICHOLSON  V.  CHAPMAN. 
(Court  of  Common  Pleas,  1793.    2  H.  Bl.  254.) 

This  was  an  action  of  trover,  brought  under  the  following  circum- 
stances :  A  considerable  quantity  of  timber,  the  property  of  the  plain- 
tiff, was  placed  in  a  dock  on  the  banks  of  the  Thames,  but  the  ropes 
with  which  it  was  fastened  accidentally  getting  loose,  it  floated,  and 
was  carried  by  the  tide  as  far  as  Putney,  and  there  left  at  low  water, 
upwn  a  towing  path  within  the  manor  of  Wimbledon.  Being  found 
in  this  situation,  the  bailiff  of  the  manor,  one  Fairchild,  employed  tlie 
defendant  Chapman,  to  remove  the  timber  with  his  waggon  from  the 
towing  path,  which  it  obstructed,  to  a  place  of  safety  at  a  little  dis- 
tance. This  Chapman  accordingly  did,  and  when  the  plaintiff  sent  to 
demand  the  timber  to  be  restored  to  him,  refused  to  deliver  it  up,  un- 
less i6.  10s.  4d.  were  paid,  which  he  claimed  partly  by  way  of  salvage, 
as  a  customary  right  due  to  the  lord  of  the  manor,  and  partly  as  a 
recompense  to  himself  for  the  trouble  of  drawing  the  timber  from 
the  water  side  to  the  place  where  it  then  lay:  but  this  demand  the 
plaintiff  refused  to  comply  with,  and  did  not  tender  any  other 
sum.     *     *     *  23 

EyrB,  L.  C.  J.  The  only  difficulty  that  remained  with  any  of  us, 
after  we  had  heard  this  case  argued  was  upon  the  question  whether 

s'A.  assisted  in  the  promotion  of  a  railway  company  before  its  incorpora' 
tion,  and  subsequently  acted  as  the  attorney  of  the  corporation.  Held,  A. 
does  not  have  a  lien  upon  the  papers  of  the  corporation  for  his  charges 
arising  out  of  the  promotion  of  the  company,  although  such  charges  were 
by  the  statute  of  incorporation  made  a  debt  of  the  company.  In  re  Galland 
L.  R.  31  Ch.  Div.  296  (1SS5). 

In  general,  on  attorney's  liens,  see  Welsh  v.  Hole,  1  Douglas,  23S  (1T79) ; 
Sanders  v.  Seelye.  12S  Til.  631,  21  N.  E.  601  (1SS9) ;  Dubois'  Appeal,  38  Pa. 
231,  SO  Am.  Dec.  478  (1861). 

2  8  The  statement  of  facts  Is  abridged. 


POSSESSORY   INTEKESTS   IN   CHATTELS 


(Ch.  3 


this  transaction  could  be  assimilated  to  salvage?  The  taking  care  of 
goods  left  by  the  tide  upon  the  banks  of  a  navigable  river,  communi- 
cating with  the  sea,  may  in  a  vulgar  sense  be  said  to  be  salvage ;  but 
it  has  none  of  the  qualities  of  salvage,  in  respect  of  which  the  laws 
of  all  civilized  nations,  the  laws  of  Oleron,  and  our  own  laws  in  par- 
ticular, have  provided  that  a  recompcnce  is  due  for  the  saving,  and 
that  our  law  has  also  provided  that  this  recompcnce  should  be  a  lien 
upon  the  goods  which  have  been  saved.  Goods  carried  by  sea  are 
necessarily  and  unavoidably  exposed  to  the  perils  which  storms,  tem- 
pests and  accidents  (far  beyond  the  reach  of  human  foresight  to  pre- 
vent) are  hourly  creating,  and  against  which,  it  too  often  happens 
that  the  greatest  diligence  and  the  most  strenuous  exertions  of  the 
mariner  cannot  protect  them.  When  goods  are  thus  in  imminent  dan- 
ger of  being  lost,  it  is  most  frequently  at  the  hazard  of  the  lives  of 
those  who  save  them,  that  they  are  saved.  Principles  of  public  policy 
dictate  to  civilized  and  commercial  countries,  not  only  the  propriety, 
but  even  the  absolute  necessity  of  establishing  a  liberal  recompcnce 
for  the  encouragement  of  those  who  engage  in  so  dangerous  a  service. 
Such  are  the  grounds  upon  which  salvage  stands ;  they  are  recog- 
nized by  Lord  Chief  Justice  Holt  in  the  case  which  has  been  cited 
from  Lord  Raymond  and  Salkeld  (1  Ld.  Raym.  393,  Salk.  654,  pi.  2). 
But  see  how  very  unlike  this  salvage  is  to  the  case  now  under  con- 
sideration. In  a  navigable  river  within  the  flux  and  reflux  of  the  tide, 
but  at  a  great  distance  from  tlie  sea,  pieces  of  timber  lie  moored  to- 
gether in  convenient  places ;  carelessness,  a  slight  accident,  perhaps 
a  mischievous  boy,  casts  off  the  mooring  rope,  and  the  timber  floats 
from  the  place  where  it  was  deposited,  till  the  tide  falls  and  leaves  it 
again  somewhere  up>on  the  banks  of  the  river.  Such  an  event  as  this, 
gives  the  owner  the  trouble  of  employing  a  man,  sometimes  for  an  hour, 
and  sometimes  for  a  day,  in  looking  after  it  till  he  finds  it,  and  brings 
it  back  again  to  the  place  from  whence  it  floated.  If  it  happens  to 
do  any  damage,  the  owner  must  pay  for  that  damage ;  it  will  be  im- 
putable to  him  as  carelessness,  that  his  timber  in  floating  from  its 
moorings  is  found  damage-feasant,  if  that  should  happen  to  be  the 
case.  But  this  is  not  a  case  of  damage-f easance ;  the  timber  is  found 
lying  upon  the  banks  of  the  river,  and  is  taken  into  the  f>ossession,  and 
under  the  care  of  the  defendant,  without  any  extraordinary  exertions, 
without  the  least  personal  risk,  and  in  truth,  with  very  little  trouble. 
It  is  therefore  a  case  of  mere  finding,  and  taking  care  of  the  thing 
found  (I  am  willing  to  agree)  for  the  owner.  This  is  a  good  office, 
and  meritorious,  at  least  in  the  moral  sense  of  the  word,  and  certainly 
entitles  the  party  to  some  reasonable  recompcnce  from  the  bounty, 
if  not  from  the  justice  of  the  owner;  and  of  which,  if  it  were  refused, 
a  court  of  justice  would  go  as  far  as  it  could  go,  towards  enforcing  the 
payment.  So  it  would  if  a  horse  had  strayed,  and  was  not  taken  as 
an  estray  by  the  lord  under  his  manorial  rights,  but  was  taken  up  by 


Sec.  2)  BAILOR   AND   BAILEE  57 

some  good-natured  man  and  taken  care  of  by  him,  till  at  some  trouble, 
and  perhaps  at  some  expence,  he  had  found  out  the  owner.  So  it 
would  be  in  ever}'  other  case  of  finding  that  can  be  stated  (the  claim 
to  the  recompence  differing  in  degree,  but  not  in  principle) ;  which 
therefore  reduces  the  merits  of  this  case  to  this  short  question,  wheth- 
er every  man  who  finds  the  property  of  another,  which  happens  to 
have  been  lost  or  mislaid,  and  voluntarily  puts  himself  to  some  trouble 
and  expence  to  preserve  the  thing,  and  to  find  out  the  owner,  has  a 
lien  upon  it  for  the  casual,  fluctuating  and  uncertain  amount  of  the 
recompence  which  he  may  reasonably  deserve?  It  is  enough  to  say, 
that  there  is  no  instance  of  such  a  lien  having  been  claimed  and  al- 
lowed; the  case  of  the  pointer  dog  (2  Black.  1117)  was  a  case  in  which 
it  was  claimed  and  disallowed,  and  it  was  thought  too  clear  a  case  to 
bear  an  argument.  Principles  of  public  policy  and  commercial  neces- 
sity support  the  lien  in  the  case  of  salvage.  Not  only  public  policy 
and  commercial  necessity  do  not  require  that  it  should  be  established 
in  this  case,  but  very  great  inconvenience  may  be  apprehended  from  it. 
if  it  were  to  be  established.  The  owners  of  this  kind  of  property,  and 
the  owners  of  craft  upon  the  river  which  lie  in  many  places  moored 
together  in  large  numbers,  would  not  only  have  common  accidents 
from  the  carelessness  of  their  servants  to  guard  against,  but  also  the 
wilful  attempts  of  ill-designing  people  to  turn  their  floats  and  vessels 
adrift,  in  order  that  they  might  be  paid  for  finding  them.  I  mentioned 
in  the  course  of  the  cause  another  great  inconvenience,  namely,  the  situ- 
ation in  which  an  owner  seeking  to  recover  his  property  in  an  action  of 
trover  will  be  placed,  if  he  is  at  his  peril  to  make  a  tender  of  a  suffi- 
cient recompence,  before  he  brings  his  action :  such  an  owner  must 
always  pay  too  much,  because  he  has  no  means  of  knowing  exactly 
how  much  he  ought  to  pay,  and  because  he  must  tender  enough.  I 
know  there  are  cases  in  which  the  owner  of  property  must  submit  to 
this  inconvenience ;  but  the  number  of  them  ought  not  to  be  increased  ; 
perhaps  it  is  better  for  the  public  that  these  voluntar\^  acts  of  benevo- 
lence from  one  man  to  another,  which  are  charities  and  moral  duties, 
but  not  legal  duties,  should  depend  altogether  for  their  reward  upon 
the  moral  duty  of  gratitude.  But  at  any  rate,  it  is  fitting  that  he  who 
claims  the  reward  in  such  a  case  should  take  upon  himself  the  burthen 
of  proving  the  nature  of  the  service  which  he  has  performed,  and  the 
quantum  of  the  recompence  which  he  demands,  instead  of  throwing 
it  upon  the  owner  to  estimate  it  for  him,  at  the  hazard  of  being  non- 
suited in  an  action  of  trover.-® 
Judgment  for  the  Plaintiff. 

29  Ace:  Etter  v.  Edwards.  4  Watts  (Pa.)  63  (1S3.5) ;  Tome  v.  Four  Cribs 
of  Lumber,  Taney,  533  (lSo3).  See  Preston  t.  Neale,  12  Gray  (Mass.)  222 
(185S). 


58 


POSSESSORY   INTERESTS   IN  CHATTELS 


(Ch.3 


WENTWORTH  v.  DAY. 

(Supreme  Judicial  Court  of  Massachusetts,  1841.     3  Mete.  352,  37  Am. 

Dec.  145.) 

[The  plaintiff  lost  a  watch.  He  published  the  following  advertise- 
ment in  a  local  newspaper :  "Twenty  dollars  reward.  Lost  upon  the 
road  from  Haverhill  to  Brighton,  about  two  miles  from  Haverhill 
Bridge,  a  gold  lever  watch.  Whoever  will  return  it  to  this  office  shall 
receive  the  above  reward.  Francis  Wentworth,  October  12th."  A 
minor  son  of  the  defendant  found  the  watch  and  delivered  it  to  the 
defendant,  who  took  the  custody  of  it  for  his  son.  The  plaintiff  re- 
fused to  pay  the  $20.00  reward  and  the  defendant  refused  to  deliver 
the  watch.  Upon  these  facts  the  plaintiff  brought  trover  for  the  watch 
and  the  case  was  submitted  to  the  court  upon  an  agreed  statement.] 

Shaw,  C.  J.^°  Although  the  finder  of  lost  property  on  land  has  no 
right  of  salvage,  at  common  law,  yet  if  the  loser  of  property  in  order 
to  stimulate  the  vigilance  and  industry  of  others  to  find  and  restore 
it,  will  make  an  express  promise  of  a  reward,  either  to  a  particular 
person,  or  in  general  terms  to  any  one  who  will  return  it  to  him,  and. 
in  consequence  of  such  oft'er,  one  does  return  it  to  him,  it  is  a  valid 
contract.  Until  something  is  done  in  pursuance  of  it,  it  is  a  mere  offer, 
and  may  be  revoked.  But  if,  before  it  is  retracted,  one  so  far  coin- 
plies  with  it,  as  to  perform  the  labor,  for  which  the  reward  is  stipu- 
lated, it  is  the  ordinary  case  of  labor  done  on  request,  and  becomes 
a  contract  to  pay  the  stipulated  compensation.  It  is  not  a  gratuitous 
service,  because  something  is  done  which  the  party  was  not  bound  to 
do,  and  without  such  offer  might  not  have  done.  Symmes  v.  Frazier, 
6  Mass.  344,  4  Am.  Dec.  142. 

But  the  more  material  question  is,  whether,  under  this  offer  of  re- 
ward, the  finder  of  the  defendant's  watch,  or  the  father,  who  acted  in 
his  behalf  and  stood  in  his  right,  had  a  lien  on  the  watch,  so  that  he 
was  not  bound  to  deliver  it  till  the  reward  was  paid. 

A  lien  may  be  given  by  express  contract,  or  it  may  be  implied  from 
general  custom,  from  the  usage  of  particular  trades,  from  the  course 
of  dealing  between  the  particular  parties  to  the  transaction,  or  from 
the  relations  in  which  they  stand,  as  principal  and  factor.     *     *     * 

In  the  present  case,  the  duty  of  the  plaintiff'  to  pay  the  stipulated 
reward  arises  from  the  promise  contained  in  his  advertisement.  That 
promise  was,  that  whoever  should  return  his  watch  to  the  printing 
office  should  receive  twenty  dollars.  No  other  time  or  place  of  pay- 
ment was  fixed.  The  natural,  if  not  the  necessary  implication  is  that 
the  acts  of  performance  were  to  be  mutual  and  simultaneous :  the 
one  to  give  up  the  watch,  on  payment  of  the  reward;    the  other  to 


3  0  Tart  of  the  opinion  Is  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  59 

pay  the  reward,  on  receiving  the  watch.  Such  being,  in  our  judgment, 
the  nature  and  legal  effect  of  this  contract,  we  are  of  opinion  that  the 
defendant,  on  being  ready  to  deliver  up  the  watch,  had  a  right  to  re- 
ceive the  reward,  in  behalf  of  himself  and  his  son,  and  was  not  bound 
to  surrender  the  actual  possession  of  it,  till  the  reward  was  paid,  and 
therefore  a  refusal  to  deliver  it,  without  such  payment,  was  not  a 
conversion. 

It  was  competent  for  the  loser  of  tlie  watch  to  propose  his  own 
terms.  He  might  have  promised  to  pay  the  reward  at  a  given  time 
after  the  watch  should  have  been  restored,  or  in  any  other  manner 
inconsistent  with  a  lien  for  the  reward  on  the  article  restored ;  in 
which  case,  no  such  lien  would  exist.  The  person  restoring  the  watch 
would  look  only  to  the  personal  responsibility  of  the  advertiser.  It 
was  for  the  latter  to  consider,  whether  such  an  offer  would  be  equally 
efficacious  in  bringing  back  his  lost  property,  as  an  offer  of  a  reward 
secured  by  a  pledge  of  the  property  itself;  or  whether,  on  the  con- 
trary, it  would  not  afford  to  the  finder  a  strong  temptation  to  conceal 
it.  With  these  motives  before  him,  he  made  an  offer,  to  pay  the  re- 
ward on  the  restoration  of  the  watch ;  and  his  subsequent  attempt 
to  get  the  watch,  without  performing  his  promise,  is  equally  inconsis- 
tent with  the  rules  of  law  and  the  dictates  of  justice. 

The  circumstance,  in  this  case,  that  the  watch  was  found  by  the 
defendant's  son,  and  by  him  delivered  to  his  father,  makes  no  differ- 
ence. Had  the  promise  been  to  pay  the  finder,  and  the  suit  were 
brought  to  recover  the  reward,  it  would  present  a  different  question. 
Here  the  son  delivered  the  watch  to  the  father,  and  authorized  the 
father  to  receive  the  reward  for  him.  If  the  son  had  a  right  to  de- 
tain it,  the  father  had  the  same  right,  and  his  refusal  to  deliver  it  to 
the  owner   without  payment  of  the  reward  was  no  conversion. 

Judgment  for  the  defendant. ^^ 

31  Ace:    Cummings  v.  Gann,  52  Pa.  4S4  (1S66). 

"There  was  no  fixed  or  certain  reward  offered  by  the  owner  to  he  paid  on 
the  delivery  of  his  property.  His  offer  was  to  pay  a  'liberal  reward."  Who 
was  to  he  the  arbiter  of  the  lilierality  of  the  offered  reward?  It  cannot  be 
supposed  that  the  owner,  by  his  offer,  designed  to  constitute  the  recoverer 
of  his  property  the  exclusive  judge  of  the  amount  to  be  paid  him  as  a  re- 
ward. And  it  is  equally  unreasonable  and  unjust  to  say  that  the  owner 
should  be  such  exclusive  judge.  In  the  event  of  a  difference  between  them, 
upon  the  subject,  the  amount  to  he  paid  must  be  ascertained  by  the  judgment 
of  the  appropriate  judicial  tribunal.  This  would  involve  the  delays  incident 
to  litigation,  and  it  would  be  a  gross  perversion  of  the  intention  of  the  own- 
er to  infer,  from  his  offered  reward,  an  agreement  on  his  part,  that  he  was 
to  be  kept  out  of  the  possession  of  his  property  till  all  the  delays  of  litiga- 
tion were  exhausted.  To  the  bailee  thus  in  possession  of  property,  such  a 
lien  would  rarely  be  valuable,  except  as  a  means  of  oppression  and  extor- 
tion ;  and  therefore  the  law  will  never  infer  its  existence  either  from  the 
agreement  of  the  parties,  or  in  furtherance  of  public  convenience  or  policy." 
Wilson  v.  Guyton,  8  Gill  (Md.)  213,  215  (1S49). 


60  POSSESSORY  INTERESTS   IN   CHATTELS  (Cll.  3 

RUSHFORTH  v.  HADFIELD. 
(Court  of  King's  Bench,  1S06.     7  East,  224.) 

This  was  an  action  of  trover  to  recover  the  vakie  of  a  quantity  of 
cloth  which  the  bankrupts  had  sent  by  the  defendants  as  comuion  car- 
riers, who  claimed  a  lien  upon  it  for  tlieir  general  balance  due  to 
them  as  such  carriers  for  other  goods  before  carried  by  them  for  the 
bankrupts.  The  plaintiffs  had  tendered  the  carriage  price  of  the  par- 
ticular goods  in  dispute,  and  the  sole  question  was,  Whether  the  de- 
fendants as  common  carriers,  had  a  lien  for  their  general  balance. 
On  die  first  trial  a  verdict  was  found  for  the  defendants,  which  this 
court  thought  was  not  sustained  by  the  evidence,  and  therefore  they 
granted  a  new  trial.  The  cause  was  again  tried  at  the  last  assizes  at 
York,  before  Chambre,  J. 

[Various  witnesses  testified  to  several  occasions  on  which  carriers 
had  successfully  retained  goods  for  the  general  balance  due  them.] 

It  was  left  to  the  jury  to  decide  whether  the  usage  were  so  gen- 
eral as  to  warrant  them  in  presuming  that  the  bankrupts  knew  it,  and 
understood  that  tliey  were  contracting  with  the  defendants  in  con- 
formity to  it;  in  which  case  they  were  to  find  for  the  defendants: 
otherwise  they  were  told  that  the  general  rule  of  law  would  entitle  the 
plaintiffs  to  a  verdict.  On  this  direction  the  jury  found  for  the  plain- 
tiffs ;  which  was  moved  to  be  set  aside  in  last  Michaelmas  term,  as  a 
verdict  against  all  the  evidence. 

Lord  EllEnrorough,  C.  J.'-  It  is  too  much  to  say  that  there  his 
been  a  general  acquiescence  in  this  claim  of  the  carriers  since  1775, 
merely  because  tliere  was  a  particular  instance  of  it  at  that  time.  Oth- 
er instances  were  only  about  10  or  12  years  back,  and  several  of  them 
of  very  recent  date.  The  question  however  results  to  this,  What  was 
the  particular  contract  of  these  parties?  And  as  the  evidence  is  silent 
as  to  any  express  agreement  between  them,  it  must  be  collected  either 
from  tlie  mode  of  dealing  before  practiced  between  the  same  parties, 
or  from  the  general  dealings  of  other  persons  engaged  in  the  same  em- 
ployment, of  such  notoriety  as  that  they  might  fairly  be  presumed 
to  be  known  to  the  bankrupt  at  the  time  of  his  dealing  with  the  de- 
fendants, from  whence  the  inference  was  to  be  drawn  that  these  par- 
ties dealt  upon  the  same  footing  as  all  others  did,  with  reference  to 
the  known  usage  of  the  trade.  But  at  least  it  must  be  admitted  that 
the  claim  now  set  up  by  the  carriers  is  against  the  general  law  of  the 
land,  and  the  proof  of  it  is  therefore  to  be  regarded  with  jealousy. 
In  many  cases  it  would  happen  that  parties  would  be  glad  to  pay  small 
sums  due  for  the  carriage  of  former  goods,  rather  than  incur  the  risk 

S2  The  opinions  of  Grose  and  Le  Blanc,  JJ.,  and  part  of  the  opinion  of 
Lawrence,  J.,  are  omitted. 


Sec.  2)  BAILOR    AND    BAILEE   '  61 

of  a  great  loss  by  the  detention  of  goods  of  value.  Much  of  the  evi- 
dence is  of  that  description.  Other  instances  again  were  in  the  case 
of  solvent  persons,  who  were  at  all  events  liable  to  answer  for  their 
general  balance.  And  little  or  no  stress  could  be  laid  on  some  of  the 
more  recent  instances  not  brought  home  to  the  knowledge  of  the  bank- 
rupt at  the  time.  Most  of  the  evidence  therefore  is  open  to  observa- 
tion. If  indeed  there  had  been  evidence  of  prior  dealings  between 
these  parties  upon  the  footing  of  such  an  extended  lien,  that  would 
have  furnished  good  evidence  for  the  jury  to  have  found  that  they  con- 
tinued to  deal  upon  the  same  terms.  But  the  question  for  the  jurj' 
here  was,  whether  the  evidence  of  a  usage  for  the  carriers  to  retain 
for  their  balance  were  so  general  as  that  the  bankrupt  must  be  taken 
to  have  known  and  acted  upon  it?  And  they  have  in  effect  found 
either  that  the  bankrupt  knew  of  no  such  usage  as  that  which  was 
given  in  evidence,  or  knowing,  did  not  adopt  it.  And  growing  liens 
are  always  to  be  looked  at  with  jealousy,  and  require  stronger  proof. 
They  are  encroachments  upon  the  common  law.  If  they  are  encour- 
aged, the  practice  will  be  continually  extending  to  other  traders  and 
other  matters.  The  farrier  will  be  claiming  a  lien  upon  a  horse  sent 
to  him  to  be  shod.  Carriages  and  other  things  which  require  frequent 
repair  will  be  detained  on  the  same  claim ;  and  there  is  no  sayins^ 
where  it  is  to  stop.  It  is  not  for  the  convenience  of  the  public  that 
these  liens  should  be  extended  further  than  they  are  already  established 
by  law.  But  if  any  particular  inconvenience  arise  in  the  course  of 
trade,  the  parties  may,  if  they  think  proper,  stipulate  with  their  cus- 
tomers for  the  introduction  of  such  a  lien  into  their  dealings.^'  But 
in  the  absence  of  any  evidence  of  that  sort  to  affect  the  bankrupt,  I 
think  the  jury  have  done  right  in  negativing  the  lien  claimed  by  the 
defendants  on  the  score  of  general  usage. 

Lawrence,  J.  The  most  which  can  be  said  on  the  part  of  the  de- 
fendants is,  that  there  was  evidence  which  might  have  warranted  the 
jury  to  find  the  other  way;   but  it  was  for  them  to  decide.     *     *     * 

Rule  discharged.'* 

33  Certain  wool  dyers  held  a  meeting  and  publicly  announced  that  there- 
after they  would  hold  for  their  general  balance  of  accounts  all  goods  received 
by  them  to  be  dyed.  A.,  with  notice  of  this  statement,  svtlisequently  deliver- 
ed wool  to  one  of  these  dyers  to  be  dyed.  Held,  the  dyer  has  a  lien  for  the 
general  balance  of  account.    Kirkman  v.  Shawcross,  6  T.  R.  14  (1794). 

3*  "Did  the  defendant  undertake  as  a  common  carrier?  If  he  did  not  he 
has  no  lien  upon  the  salt.  One  who  is  not  a  public  or  common  carrier,  but 
specially  undertakes  to  carry  a  particular  load  for  hire,  has  no  lien  for 
freight  unless  he  specially  reserves  it  by  agreement."  Fuller  v.  Bradley,  25 
Pa.  120  (1855). 

A  general  lien  by  a  wharfinger  for  other  than  wharfage  charges  was  held 
not  to  be  established  in  Holderness  v.  Collinson,  7  B.  &  C.  212  (1827). 


G3  POSSESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

JACKSON  V.  CUMMINS. 
(Court  of  Exchequer,  1839.    5  Mees.  &  W.  .342.) 

[The  plaintiff  pastured  his  milch  cows  with  the  defendant  for  a  pe- 
riod of  several  months.  He  did  not  pay  the  amount  owing  for  the  pas- 
turage and  the  defendant  refused  to  give  up  the  possession  of  the  cows. 
The  plaintiff  entered  the  defendant's  premises  and  seized  and  drove 
away  the  said  cows.  The  defendant  then  entered  the  plaintiff's  prem- 
ises and  retook  possession  of  the  cows.  The  plaintiff  brought  trespass 
against  the  defendant  for  the  entering  and  taking  away.  The  verdict 
below  was  for  the  plaintiff,  with  leave  to  the  defendant  to  move  for  a 
nonsuit  if  the  court  should  be  of  opinion  that  a  lien  existed  at  common 
law  for  the  agistment  of  cattle.  The  defendant  obtained  a  rule  accord- 
ingly.] 

Parke,  B.^'  *  *  *  j  think  ihat  by  the  general  law  no  lien  ex- 
ists in  the  case  of  agistment.  The  general  rule,  as  laid  by  Best,  C.  J., 
in  Bevan  v.  Waters,  Mood.  &  M.  235  (1828),  and  by  this  Court  in 
Scarfe  v.  Morgan,  4  M.  &  W.  270  (1838),  is,  that  by  the  general  law,  in 
the  absence  of  any  special  agreement,  whenever  a  party  has  expended 
labour  and  skill  in  the  improvement  of  a  chattel  bailed  to  him,  he  has  a 
lien  upon  it.  Now,  the  case- of  agistment  does  not  fall  within  that 
Ijrinciple,  inasmuch  as  the  agister  does  not  confer  any  additional  value 
on  the  article,  either  by  the  exertion  of  any  skill  of  his  own,  or  indi- 
rectly by  means  of  any  instrument  in  his  possession,  as  was  the  case 
with  the  stallion  in  Scarfe  v.  Morgan ;  he  simply  takes  in  the  animal  to 
feed  it.  In  addition  to  which,  we  have  the  express  authority  of  Chap- 
man v.  Allen,  that  an  agister  has  no  lien ;  and  although  possibly  that 
case  may  have  been  decided  on  the  special  ground  that  there  had  been 
an  agreement  between  the  parties,  or  a  conversion  of  the  animal  had 
taken  place,  still  it  is  also  quite  possible,  that  it  might  have  proceeded 
on  the  more  general  principle,  that  no  lien  can  e.xist  in  the  case  of  agist- 
ment; ^^  and  it  was  so  understood  by  this  Court  in  Judson  v.  Etheridge, 
1  Cr.  &  M.  743  (1833).  The  analog}-,  also,  of  the  case  of  the  livery 
stable  keeper,  who  has  no  lien  by  law,  furnishes  an  additional  reason 
why  none  can  exist  here;  for  this  is  a  case  of  an  agistment  of  milch 
cows,  and,  from  the  very  nature  of  the  subject-matter,  the  owner  is  to 
have  possession  of  them  during  the  time  of  milking;  which  establishes 
that  it  was  not  intended  that  the  agister  was  to  have  the  entire  posses- 
sion of  the  thing  bailed ;  and  tliere  is  nothing  to  shew  that  the  owner 
might  not,  for  that  purpose,  have  taken  the  animals  out  of  the  field 
wherein  they  were  grazing,  if  he  had  thought  proper  so  to  do.     This 

86  The  statement  of  facts  Is  rewritten  and  part  of  the  opinion  of  Parke, 
J.,  Is  omitted. 

soAcc.:  Lewis  v.  Tyler,  23  Cal.  3C4  (1S63);  Goodrich  v.  Willard,  7  Gray 
(Mass.)  1S3  (1S56). 


Sec.  2)  BAILOR    AND    BAILEE  63 

claim  of  lien  is  therefore  inconsistent  with  the  necessary  enjoyment  of 
the  property  by  the  owner.^^  As  to  the  case  of  the  training  groom  it  is 
not  necessary  to  say  anything  as  it  has  not  been  formally  decided ;  for 
in  Jacobs  v.  Latour,  5  Bing.  130,  the  point  was  left  undetermined.  It 
is  true,  there  is  a  nisi  prius  decision  of  Best,  C.  J.,  in  Bevan  v.  Waters, 
that  the  trainer  would  have  a  lien,  on  the  ground  of  his  having  expend- 
ed labour  and  skill  in  bringing  the  animal  into  condition  to  run  at  races ; 
but  it  does  not  appear  to  have  been  present  to  the  mind  of  the  Judge, 
nor  was  the  usage  of  training  to  that  efTect  explained  to  him,  that  when 
horses  are  delivered  for  that  purpose,  the  owner  has  always  a  right, 
during  the  continuance  of  the  process,  to  take  the  animal  away  for  the 
purpose  of  running  races  for  plates  elsewhere.^*  The  right  of  lien, 
tlierefore,  must  be  subservient  to  this  general  right,  which  overrides  it ; 
so  that  I  doubt  if  that  doctrine  would  apply  where  the  animal  delivered 
was  a  race  horse,  as  that  case  differs  much  from  the  ordinary  case  of 
training.  I  do  not  say  that  the  case  of  Bevan  v.  Waters  was  wrongly 
decided;  I  only  doubt  if  it  extends  to  the  case  of  a  race-horse,  unless 
perhaps  he  was  delivered  to  the  groom  to  be  trained  for  the  purpose 
of  running  a  specified  race,  when  of  course  these  observations  of  mine 
would  not  apply.  But,  at  all  events,  I  am  clear  that  this  agister  has  no 
lien,  as  his  case  certainly  does  not  come  within  the  general  principles 
which  have  been  established :  in  addition  to  which,  such  a  claim  would 
be  inconsistent  with  tlie  more  general  right  exerciseable  by  die  owner 
of  the  cattle. 

Rule  discharged.^' 

s^  A  garage  keeper,  in  tlie  absence  of  a  statute,  has  no  lien  for  the  re- 
pair of  an  automobile  kept  in  bis  garage,  where  tbe  owner  exercises  the  right 
to  use  the  automobile  at  pleasure.  Smith  v.  O'Brien,  46  Misc.  Kep.  325,  9i 
N.  Y.  Supp.  673  (1005). 

By  business  custom  in  a  community,  wharfage  dues  were  not  paid  by  the 
importer  until  the  Christmas  following  the  importation,  even  tliough  the 
goods  had  Ix'en  in  tlie  meantime  removed.  A.  was  indebted  to  B.  for  wharf- 
age charges,  and  failed  to  pay  at  the  Christmas  following,  and  subsequently 
iK'came  bankrupt,  the  goods  still  remaining  in  B.'s  possession.  Held.  B. 
has  no  lien  upon  the  goods  as  against  C,  who  purchased  from  A.  before 
Christmas.  Grawshay  '\-.  Homfray,  4  B.  &  Aid.  50  (1S20).  See  Pinney  v. 
Wells,  10  Conn.  104  (1834). 

3  8  On  these  facts  there  was  held  to  be  no  lien,  in  Forth  v.  Simpson,  13  Q. 
B.  N.  S.  OSO  (1S49) :  otherwise  in  Harris  v.  Woodruff,  124  Mass.  205,  26  Am. 
Rep.  G5S  (187S).  where  the  horse  in  fact  remained  in  the  trainer's  possession. 

sa  See  The  History  of  Assumpsit,  2  H.  L.  R.  53,  at  61 ;  and  compare  the 
reasoning  of  the  court  in  HoduMn  v.  Waldron.  9  N.  H.  66  (1S37),  and  Cura- 
mings  v.'llarris,  3  Vt.  244,  23  Am.  Dec.  206  (1831). 

By  statute,  agisters  and  stable  keepers  are  frequently  given  liens,  1  Jones, 
Liens  (3d  Ed.)  c.  13. 


64  POSSESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

STEINMAN  V.  WILKINS. 
(Supreme  Court  of  Pennsylvania,  1S44.      7  Watts  &  S.  466.) 

The  plaintiff  brought  this  action  of  trover  against  the  defendant, 
who  is  a  warehouseman  in  Clarion  county,  on  the  Allegheny  river,  for 
the  supposed  conversion  of  certain  goods  retained  for  the  price  of 
warehouse  room,  being  part  of  a  larger  lot  which  was  stored  in  his 
warehouse  by  Hamilton  &  Humes,  of  whom  tlie  plaintiiY  is  the  general 
assignee.  Tho  greater  part  had  been  delivered  to  Hamilton  &  Humes, 
and  the  residue  having  been  demanded  without  tender  of  any  charges, 
McCalmont  (President  of  the  Common  Picas  of  Clarion  county)  di- 
rected the  jury  that  though  tho  defendant  could  not  retain  for  the  gen- 
eral balance  of  his  account,  he  might  retain  for  all  the  charges  on  all 
the  goods  forwarded  to  him  at  the  same  time.  A  bill  of  exceptions  was 
sealed,  and  the  point  was  argued  on  a  writ  of  error  to  this  court. 

Gibson,  C.  J."  Though  a  plurality  of  the  barons  in  Rex  v.  Hum- 
phrey, 1  McClell.  &  Y.  194,  195,  dissented  from  the  dictum  of  Baron 
Graham  that  a  warehouseman  has  a  lien  for  a  general  balance,  like  a 
wharfinger,  I  do  not  understand  them  to  have  intimated  that  he  has  no 
lien  at  all.  They  spoke  of  it  as  an  entity,  and  seem  to  have  admitted 
that  he  has  a  sf>ecific  lien,  though  not  a  general  one.  There  is  a  well- 
known  distinction  between  a  commercial  lien,  which  is  the  creature  of 
usage,  and  a  common-law  lien,  which  is  the  creature  of  policy.  The 
first  gives  a  right  to  retain  for  a  balance  of  accounts ;  the  second,  for 
services  performed  in  relation  to  the  particular  property.  Commercial 
or  general  liens,  which  have  not  been  fastened  on  the  law  merchant  by 
inveterate  usage,  are  discountenanced  by  the  courts  as  encroachments 
on  the  common  law ;  and  for  that  reason  it  would  be  impossible  to 
maintain  the  position  of  Baron  Graham,  for  tliere  is  no  evidence  of 
usage  as  a  foundation  for  it,  and  no  text-writer  has  treated  of  ware- 
house room  as  a  subject  of  lien  in  any  shape.  In  Rex  v.  Humphrey,  it 
was  involved  in  the  discussion  only  incidentally ;  and  I  have  met  with 
it  in  no  otlier  case.  But  there  is  doubtless  a  specific  lien  provided  for  it 
by  the  justice  of  the  common  law.  From  the  case  of  a  chattel  bailed 
to  acquire  additional  value  by  the  labour  or  skill  of  an  artisan,  the  doc- 
trine of  specific  lien  has  been  extended  to  almost  every  case  in  which 
the  thing  has  been  improved  by  the  agency  of  the  bailee.  Yet,  in  the 
recent  case  of  Jackson  v.  Cummings,  5  Mecs.  &  Welsh.  342,  it  was  held 
to  extend  no  further  than  to  cases  in  which  tho  bailee  has  directly  con- 
ferred additional  value  by  labour  or  skill,  or  indirectly  by  the  instru- 
mentality of  an  agent  under  his  control;  in  supposed  accordance  with 
which  it  was  ruled  that  the  agistment  of  cattle  gives  no  lien.  But  it  is 
difficult  to  find  an  argument  for  the  position  that  a  man  who  fits  an  ox 

*o  Part  of  the  opiuion  Is  omitted. 


Sec.  2)  BAILOR   AND    BAILEE  65 

for  the  shambles,  by  fatting  it  with  his  provender,  does  not  increase  its 
intrinsic  value  by  means  exclusively  within  his  control.  There  are 
certainly  cases  of  a  different  stamp,  particularly  Bevan  v.  Waters, 
Mood.  &  Malk.  235,  in  which  a  trainer  was  allowed  to  retain  for  fitting 
a  race-horse  for  the  turf.  In  Jackson  v.  Cummings  we  see  the  expiring 
embers  of  the  primitive  notion  that  the  basis  of  the  lien  is  intrinsic  im- 
provement of  the  thing  by  mechanical  means ;  but  if  we  get  away  from 
it  at  all,  what  matters  it  how  the  additional  value  has  been  imparted, 
or  whether  it  has  been  attended  with  an  alteration  in  the  condition  of 
the  thing?  It  may  be  said  that  the  condition,  of  a  fat  ox  is  not  a  perma- 
nent one;  but  neither  is  the  increased  value  of  a  mare  in  foal  perma- 
nent ;  yet  in  Scarf e  v.  Morgan,  4  Mees.  &  Welsh.  270,  the  owner  of  a 
stallion  was  allowed  to  have  a  lien  for  the  price  of  the  leap.  The  truth 
is,  the  modern  decisions  evince  a  struggle  of  the  judicial  mind  to  escape 
from  the  narrow  confines  of  the  earlier  precedents,  but  without  having 
as  yet  established  principles  adapted  to  the  current  transactions  and 
convenience  of  the  world.  Before  Chase  v.  Westmore,  5  Maule  & 
Selw.  180,  there  was  no  lien  even  for  work  done  under  a  special  agree- 
ment ;  now,  it  is  indifferent  whether  the  price  has  been  fixed  or  not. 
In  that  case.  Lord  Ellenborough,  alluding  to  the  old  decisions,  said  that 
if  they  "are  not  supported  by  law  and  reason,  the  convenience  of  man- 
kind certainly  requires  that  our  decisions  should  not  be  governed  by 
them;"  and  Chief  Justice  Best  declared  in  Jacobs  v.  Latour,  5  Bingh. 
132,  that  the  doctrine  of  lien  is  so  just  between  debtor  and  creditor, 
that  it  cannot  be  too  much  favoured.  In  Kirkman  v.  Shawcross,  6  T. 
R.  17,  Lord  Kenyon,  said  it  had  been  the  wish  of  the  courts,  in  all  cas- 
es and  at  all  times,  to  carry  the  lien  of  the  common  law  as  far  as  pos- 
sible; and  that  Lord  Mansfield  also  thought  that  justice  required  it, 
though  he  submitted  when  rigid  rules  of  law  were  against  it.  What 
rule  forbids  the  lien  of  a  warehouseman  ?  Lord  Ellenborough  thought 
in  Chase  v.  Westmore,  that  every  case  of  the  sort  was  that  of  a  sale  of 
services  performed  in  relation  to  a  chattel,  and  to  be  paid  for,  as  in  the 
case  of  any  other  sale,  when  the  article  should  be  delivered.  Now,  a 
sale  of  warehouse  room  presents  a  case  which  is  bound  by  no  pre- 
established  rule  or  analogy;  and,  on  the  ground  of  principle,  it  is  not 
easy  to  discover  why  the  warehouseman  should  not  have  the  same  lien 
for  the  price  of  future  delivery  and  intermediate  care  that  a  carrier  has. 
The  one  delivers  at  a  dift'erent  time,  the  other  at  a  different  place ;  the 
one  after  custody  in  a  warehouse,  the  other  in  a  vehicle ;  and  that  is  all 
the  difference.  True,  the  measure  of  the  carrier's  responsibility  is 
greater;  but  that,  though  a  consideration  to  influence  the  quantum  of 
his  compensation,  is  not  a  consideration  to  increase  the  number  of  his 
securities  for  it.  His  lien  does  not  stand  on  that.  He  is  bound  in  Eng- 
land by  the  custom  of  the  realm  to  carry  for  all  employers  at  establish- 
ed prices ;  but  it  is  by  no  means  certain  that  our  ancestors  brought  the 
principle  with  them  from  the  parent  country  as  one  suited  to  tlieir  con- 
Big.Pers.I'boi". — 5 


66  POSSESSORY   IXTEItESTS   IN   CHATTELS  (Ch.  3 

dition  in  a  wilderness.  We  have  no  trace  of  an  action  for  refusing  to 
carry;  and  it  is  notorious  that  the  wagoners,  who  were  formerly  the 
carriers  between  Philadelphia  and  Pittsburgh,  frequently  refused  to 
load  at  the  current  price.  Now,  neither  the  carrier  nor  the  warehouse- 
man adds  a  particle  to  the  intrinsic  value  of  the  thing.  The  one  deliv- 
ers at  the  place,  and  the  other  at  the  time,  that  suits  the  interest  or  the 
convenience  of  the  owner  of  it,  in  whose  estimation  it  receives  an  in- 
crease of  its  relative  value  from  the  services  rendered  in  respect  of  it, 
else  he  would  not  have  undertaken  to  pay  for  them.  I  take  it,  then,  that, 
in  regard  to  lien,  a  warehouseman  stands  on  a  footing  witli  a  carrier, 
whom  in  this  country  he  closely  resembles.  *  *  * 
Judgment  affirmed.*^ 


SCHUMACHER  v.  CHICAGO  &  N.  W.  RY.  CO. 
(Supreme  Court  of  Illinois,  1904.     207  111.  199,  69  N.  D.  S25.) 

[Plaintiff  had  shipped  to  himself,  over  defendant's  railroad,  two 
carloads  of  coke.  The  plaintiff  was  duly  notified  of  the  arrival  of 
the  cars  and  was  also  notified  that  if  they  were  not  unloaded  within 
48  hours  a  charge  of  $1.00  per  day  would  be  made  for  the  trackage 
and  car  rental,  for  which  a  lien  would  be  reserved.  The  plaintiff'  did 
not  unload  the  cars  within  the  time  specified.  The  defendant  re- 
,tained  a  part  of  the  coke  to  enforce  its  lien  for  demurrage.  The  plain- 
tiff' brought  replevin  for  the  coke.  Verdict  below  was  for  the  defend- 
ant and  the  plaintiff  appealed.] 

Ricks,  J.*'  *  *  *  Under  the  constitution  and  laws  of  this  State 
railroads  are  public  highways  and  railroad  corporations  are  quasi  pub- 

*iAec.:  Shingleur- Johnson  &  Co.  v.  Canton  Cotton  Warehouse  Co.,  78  Miss. 
875,  29  South.  770.  84  Am.  St.  Kep.  G.55  (1901). 

"A  mere  volunteer,  *  *  *  accepting  the  temporary  custod.v  of  gooils 
without  any  agreement  on  the  subject,  has  no  *  *  *  lien.  He  may  or 
may  not,  according  to  the  circumstances,  be  entitled  to  compensation  as  for 
work  and  labor,  etc.,  upon  a  quantum  meruit,  but  he  has  no  lion."  Uivara  v. 
Ohio,  3  E.  D.  Smith  (X.  Y.)  204,  208  (1854).  Ace:  Christopher  v.  Jerdee,  152 
Wis.  367,  139  N.  W.  1132  (1913). 

A.  leased  a  shop  to  B. ;  later  B.  contended  that  he  had  sold  the  good  in 
the  shop  to  C.  and  gave  up  the  Isey.  A.  told  B.  and  C.  that  if  the  goods  were 
not  removed  he  should  claim  a  lieu  on  them  for  storage.  Held,  he  has  a  lieu 
as  against  B.     Schneider  v.  Dayton,  111  Mich.  396,  69  N.  W.  829  (1S07). 

For  other  instances  of  specific  liens,  see  Green  v.  Farmer,  4  Burr.  2214 
(1768),  dyer;  Franklin  v.  Hosier,  4  B.  &  Aid.  341  (1821),  shipwright;  Xevaii 
V.  Roup,  8  Iowa,  208  (1859),  grain  thresher;  Lord  v.  Jones,  24  Me.  4.39,  41 
Am.  Dec.  391  (1844),  farrier;  Wilson  v.  Martin,  40  N.  H.  88  (1860),  harness 
cleaner;  Morgan  v.  Congdon,  4  N.  Y.  552  (1851),  sawyer;  Moulton  v.  Greene, 
10  R.  I.  330  (1872),  carriage  repairer. 

A.  received  stereotyi>e  plates  from  B.  for  the  purpose  of  printing  a  book 
for  B.  Held,  A.  has  no  lien  upon  the  plates  for  charges  in  connection  with 
the  printing  of  the  book.  Eleadeu  v.  Hancock,  Mood.  &  M.  465  (1829) ;  De 
Vinne  v.  Itianhard,  9  Daly  (X.  Y.)  406  (1880). 

*2  Part  of  the  opinion  is  omitted. 


Sec.  2)  BAILOB    AND    BAILEE  67 

lie  corporations.  *  *  *  Regarding  them  as  public  agencies,  dis- 
charging duties  in  which  the  public  is  interested,  the  State  regulates 
and  controls  their  rates  and  tolls,  both  for  the  carrying  of  freight 
and  passengers,  and  in  many  other  respects  regulates  and  controls  their 
operation.  Upon  the  payment  or  tender  of  the  legal  tolls,  freight  or 
fare,  such  companies  are  required  to  furnish  cars  and  transport  freight 
and  passengers  within  a  reasonable  time.  *  *  *  All  of  these  reg- 
ulations by  the  State  are  justified  and  sustained  upon  the  ground  that 
the  State  is  interested  in  the  prompt  and  proper  carriage  of  its  products 
and  the  commerce  of  its  people,  and  it  would  seem  that  reasonable 
rules  and  regulations  adopted  by  such  corporations,  conducive  to  the 
proper  discharge  of  the  public  duty,  should,  where  they  are  not  in 
violation  of  some  positive  law,  be  sustained. 

Railroads,  as  to  freights  committed  to  their  charge,  during  the  period 
of  transport  and  until  they  are  delivered,  bear  two  well  recognized 
relations.  While  in  transit,  and  for  a  reasonable  time  after  reaching 
the  point  of  destination,  they  owe  the  duties  and  bear  the  relation  of 
common  carriers ;  and  when  the  car  containing  the  freight  is  delivered 
to  the  consignee  upon  his  own  track  or  at  the  place  selected  by  him 
for  unloading,  if  he  have  one,  or  to  the  consignee  upon  the  company's 
usual  and  customary  track  for  the  discharge  of  freight,  with  reasonable 
and  proper  opportunity  to  the  consignee  to  take  the  same,  or  when 
placed  in  the  warehouse  of  such  company  or  the  warehouse  of  another 
selected  by  them,  in  any  and  all  such  cases  such  companies  then  bear 
to  such  freight  the  relation  of  warehousemen.  Peoria  &  Pekin  Un- 
ion Railway  Co.  v.  United  States  Rolling  Stock  Co.,  136  111.  643,  27  N. 
E.  59,  29  Am.  St.  Rep.  348 ;  Gregg  v.  Illinois  Central  Railroad  Co., 
147  111.  550,  35  N.  E.  343,  37  Am.  St.  Rep.  238.  *  *  *  Such  are 
the  duties  of  such  companies  appertaining  to  bulk  freight  in  carload 
lots,  which,  it  may  be  said,  by  the  uniform  rule  and  custom  of  this 
country  are  to  be  loaded  and  unloaded  by  the  shipper  and  consignee. 
Small  or  package  freight  of  such  character,  and  bulk  that  that  be- 
longing to  many  distinct  owners  may  be  shipped  in  a  single  car,  is 
commonly  loaded  and  unloaded  by  the  transporting  company  or  com- 
panies. When  such  freight  reaches  the  point  of  destination  and  is 
placed  in  the  freight  depot  or  warehouse  of  such  company  it  is  held 
by  such  company  as  a  warehouseman,  and  when  a  railroad  company 
carries  freight  to  its  point  of  destination  and  stores  the  same  in  its 
warehouse,  and  the  relation  of  warehouseman  is  established  by  the 
failure  to  remove  the  property  within  a  reasonable  time,  the  liability 
of  a  warehouseman  attaches,  and  not  the  liability  of  a  common  car- 

And  when  such  freight  is  in  the  warehouse  the  railroad  company 
may  charge  storage  upon  the  same,  and  it  has  a  lien  upon  the  freight 
so  stored  for  its  storage  charges,  and  this  rule  obtains  although  the 
company  may  have  given  the  consignee  notice  to  remove  the  property 


68  POSSESSOnY   INTERESTS' IN   CHATTELS  (Cll.  3 

within  twenty- four  hours.  Richards  v.  Michigan  Southern  &  Northern 
Indiana  Railroad  Co.,  20  111.  405.     *     *     * 

When  a  railroad  company  delivering  freight  at  its  point  of  destina- 
tion has  no  warehouse  at  that  point  suitable  for  the  storage  of  bulk 
freight  in  carload  lots,  and  the  property  is  of  such  character  that  the 
cars  in  which  it  is  transported  furnish  a  proper  and  safe  place  for  the 
same,  so  that  it  is  not  liable  to  damage  or  deterioration  arising  from 
heat  or  cold  or  the  elements,  there  would  seem  to  be  no  reason  for 
requiring  the  transporting  company  to  seek  a  warehouse  of  another 
and  add  the  cost  of  removal  to  the  cost  of  storage  when  said  freight 
may  properly  be  held  in  storage  in  the  cars  in  which  the  same  was 
carried ;  and  after  notice  to  the  consignee,  and  a  reasonable  time  to 
remove  the  same,  reasonable  storage  charges  may  be  collected  therefor 
and  the  freight  held  for  the  payment  thereof.  Miller  v.  Mansfield,  112 
Mass.  260;  iMiller  v.  Georgia  Railroad  Co.,  88  Ga.  563,  15  S.  E.  316, 
18  L.  R.  A.  323,  30  Am.  St.  Rep.  170;  Gregg  v.  Illinois  Central  Rail- 
road Co.,  147  111.  550,  35  S.  E.  343,  37  Am.  St.  Rep.  238.     *    *     * 

The  evidence  in  this  case  shows  that  by  the  enforcement  of  the 
rule  here  insisted  upon,  the  transportation  facilities  in  the  car  service 
territory  here  involved  was  increased  practically  one  hundred  per 
cent.,  and  that  only  about  seven  per  cent,  of  the  shippers  or  consignees, 
through  its  operation,  hold  their  cars  overtime.  If  such  common  car- 
riers must  comply  with  our  statute  and  must  furnish  transportation  for 
people  and  freight  when  demanded,  and  such  companies  have  made 
proper  provision  in  equipping  their  roads  with  an  ample  supply  of 
rolling  stock,  and  yet,  because  of  the  dilatoriness  or  perversity  of  ship- 
pers and  consignees,  cars  may  be  held  indefinitely  at  loading  and  dis- 
charging points,  contrary  to  the  desires  and  interests  of  such  com- 
panies, then  it  must  be  plain  that  the  statute  must  either  fall  as  a  dead 
letter  or  its  enforcement  must  work  great  injustice  to  such  com- 
panies.    *     *     * 

Nor  do  we  think  it  necessary  to  the  existence  of  such  lien  that  it 
arise  from  a  specific  contract  providing  for  the  same,  but  that  such 
right  and  contract  may  arise  by  implication,  as  in  the  case  of  ware- 
house charges  to  a  railroad  company  that  has  stored  goods  transported 
by  it  when  not  received  by  the  consignee  promptly  at  the  place  of  de- 
livery.    *     *     * 

It  is  claimed,  however,  by  appellant  that  the  case  of  Chicago  & 
Northwestern  Railway  Co.  v.  Jenkins,  103  111.  588,  lays  down  tlie  rule 
contrary  to  the  views  we  have  above  expressed,  and  that  that  case 
should  be  controlling  in  the  present  case.  We  think  not.  That  case 
seems  to  have  related  to  or  grown  out  of  the  shipment  of  goods  in 
less  quantity  tlian  a  carload  lot.  The  character  of  the  goods  was  of 
a  perishable  nature,  and  such,  if  removed  from  the  cars,  must  be  stored, 
and  in  distinguishing  that  case  from  cases  under  the  maritime  law,  and 
denying  that  tlie  rule  applicable  in  contracts  of  shipment  under  the 


Sec.  2)  BAILOR    AND    BAILEE  69 

latter  law  applied  to  railroad  companies,  it  was  said  (103  111.  600) : 
"But  the  mode  of  doing  business  by  the  two  kinds  of  carriers  is  es- 
sentially different.  Railroad  companies  have  warehouses  in  which  to 
store  freights ;  owners  of  vessels  have  none.  Railroads  discharge 
cargoes  carried  by  them;  carriers  by  ship  do  not,  but  it  is  done 
by  the  consignee."  Thus,  it  will  be  seen  that  the  court  could  not  have 
had  in  mind  the  case  of  the  shipment  of  goods  of  the  character  here 
involved  by  carload  lots,  and  where  the  undisputed  evidence  shows 
that  the  rule  is  that  such  freight  shall  be  loaded  by  the  shipper  and 
unloaded  by  the  consignee,  and  that  railroads  do  not  have  warehouses 
in  which  to  store  that  class  of  goods.     *     *     * 

It  is  urged,  further,  that  a  lien  ought  not  to  be  accorded  common 
carriers  in  such  cases,  but  they  should  be  left  to  their  action  upon 
the  case  or  in  assumpsit.  There  is  no  law  preventing  the  sale,  by  the 
consignee,  of  the  cargo,  at  the  point  of  destination,  to  one  or  many 
persons  who  may  be  wholly  irresponsible  and  as  against  whom  suits 
would  be  unavailing.  The  object  of  such  a  rule  cannot  be  so  much 
for  the  recovery  of  a  revenue  as  the  enforcement  of  a  rule  that  is  to 
the  benefit  of  all  the  shippers,  and  thereby  a  public  benefit.  The  charge 
must  be  said  to  be  little  more  than  nominal,  and  yet  the  evidence  dis- 
closes that  its  imposition  in  such  cases  has  had  a  highly  beneficial  ef- 
fect. No  question  is  made  as  to  the  reasonableness  of  the  charge,  and 
if  there  were,  it  could  have  no  effect  in  the  case  at  bar,  for  the  rea- 
son that  appellant  absolutely  denies  the  right  of  appellee  to  any  charge 
or  compensation  and  made  no  tender  of  anv  portion  of  it.  Russell 
V.  Koehler,  66  111.  459;  Hoyt  v.  Sprague,  61  Barb.  (N.  Y.)  497;  Schou- 
ler  on  Bailments,  §  125. 

The  views  above  expressed  as  to  the  rule  obtaining  to  such  charges, 
whether  regarded  as  storage  charges  or  demurrage  or  car  service, 
seems  to  be  in  keeping  with  the  weight  of  the  modern  decisions  upon 
the  question,  and,  we  believe,  will  tend  to  the  public  welfare. 

The  judgment  of  the  Appellate  Court  is  affirmed.*^ 

•4  3  The  cases  on  this  point  are  collected  in  a  note  to  Nicolette  Lumber  Co. 
V.  People's  Coal  Co..  3  L.  R.  A.  (N.  S.)  .327,  also  reported  in  213  Pa.  379,  62 
Atl.  1060.  110  Am.  St.  Rep.  550,  5  Ann.  Cas.  387  (1906). 

A  common  carrier  has  a  lien  upon  the  hasgage  of  a  passenger  for  the  lat- 
ter's  fare.     Wolf  v.  Summers,  2  Camp.  631  (1811). 


70  possESSonY  ixtekests  in  chattels  (Cli.  3 

BLAKE  and  Others,  Assignees  of  Stratford,  v.  NICHOLSON. 
(Court  of  King's  Bench,  1814.    3  Maule  &  S.  1G7.) 

Trover  for  certain  numbers  or  parts  of  a  printed  work,  called  Dr. 
Hawker's  Commentary  on  the  Bible.  Plea,  general  issue.  At  the 
trial  before  Lord  Ellenborough,  C.  J.,  at  the  Middlesex  sittings  after 
last  term  the  case  was  this :  the  defendant,  who  was  a  printer,  had 
been  employed  by  Stratford,  before  his  bankruptcy,  to  print  several 
numbers,  not  all  consecutive  numbers,  of  the  said  work;  of  which 
he  printed  in  the  whole  8750  copies,  and  delivered  to  Stratford  5987, 
and  the  residue  remained  with  him  in  his  warehouse.  Stratford  sup- 
plied the  paper  for  printing  the  several  numbers  from  time  to  time  as 
they  were  to  be  printed ;  and  a  separate  charge  was  made  by  the  de- 
fendant for  the  printing  of  each  number,  amounting  in  the  whole  to 
£494  2s.,  of  which  Stratford  had  at  different  times  paid  £185  on  ac- 
count. Afterwards  Stratford  becoming  bankrupt,  the  plaintiffs,  as 
his  assignees,  applied  to  the  defendant  for  the  delivery  of  the  copies 
remaining  in  his  hands,  tendering  to  him  so  much  as  was  due  for  the 
printing  of  those  copies,  in  proportion  to  his  charge  for  the  whole. 
The  defendant  refused  to  deliver  them,  insisting  that  he  had  a  lien  for 
the  whole  balance.  His  Lordship  upon  this  evidence  considered  the 
work  as  one  entire  work,  and  directed  a  nonsuit.    Rule  for  a  new  trial. 

Lord  EllExhorough,  C.  J.  I  think  the  defendant  had  a  lien  for 
the  whole  balance,  the  work  being  an  entire  work  in  the  course  of 
prosecution,  upon  the  same  principle  that  a  tailor,  who  is  employed 
to  make  a  suit  of  clothes,  has  a  lien  for  the  whole  price  upon  any  part 
of  them.  It  would  be  inconvenient  if  he  was  obliged  to  make  stops  in 
the  course  of  the  work;  the  nature  of  the  work  affords  a  reason  for 
his  general  lien. 

Rule  refused.** 

**  Ace:  Chase  v.  Westmore,  5  M.  &  S.  ISO  (1816) ;  Holderman  v.  Manier,  104 
Ind.  lis,  3  N.  E.  Sll  (18S.5) ;  Lane  v.  Old  Colony  &  F.  R.  Co..  14  Gray  (Mas.s.) 
143  (ISCO) ;    Hensel  v.  Noble,  95  Pa.  345,  40  .\m.  Rep.  659  (1S80). 

The  defendant  was  a  common  carrier.  As  such  he  carted  for  the  plain- 
tiffs, at  various  times  during  a  period  of  several  months,  450  barrels  of  flour 
at  the  rate  of  $1.25  a  barrel.  The  freight  not  being  paid,  he  retained  the 
last  1.34  barrels  for  the  freight  on  the  entire  amount  carried.  Held,  he  has 
no  right  so  to  do.    Hartshorne  v.  Johnson,  7  N.  J.  Law.  108  (182.3). 

A.  bought  a  through  ticket  from  X.  to  Z.  He  willfully  left  the  train  at  Y., 
a  way  station ;  his  baggage  going  on  to  Z.  He  tooli  the  next  train  from  Y. 
to  Z.  and  refused  to  pay  a  second  fare.  Held,  the  railroad  has  a  lien  on  his 
baggage  for  the  second  fare.    Roberts  v.  Koehler  (C.  C.)  .30  Fed.  94  (1887). 

A.  took  passage  on  the  X.  railroad  with  liis  infant  son.  He  paid  his  own 
fare  and  checked  his  baggage  on  his  own  ticket.  During  the  journey  a  fare 
was  demanded  for  the  son.  A.  refused  to  pay  it.  Held,  A.  is  responsible  for 
his  son's  fare,  but  the  X.  railroad  has  no  lien  therefor  on  A.'s  baggage. 
Cantwell  v.  Terminal  R.  Ass'n  of  St.  Louis,  160  Mo.  App.  393,  140  S.  \V.  906 
(1911). 

For  similar  questions  in  connection  with  statutory  lumberman's  liens,  see 


Sec.  2)  BAILOR    AND    BAILEE  71 

BRITISH  EMPIRE  SHIPPING  CO.,  Limited,  v.  SOMES. 
(Court  of  Queen's  Bench,  1858.    El.  Bl.  &  El.  353.) 

[The  plaintiff  was  the  owner  of  a  vessel  called  "The  British  Empire." 
The  defendants  were  shipwrights.  The  defendants  were  employed  to 
repair  the  vessel.  On  the  completion  of  the  repairs  the  defendants  re- 
fused to  give  up  possession  of  the  vessel  until  they  were  paid  or  se- 
cured. A  few  days  later,  they  notified  the  plaintiff  that  they  should 
charge  £21.  a  day  for  the  use  of  the  dock  in  which  the  vessel  was 
stored.  The  plaintiff  denied  the  right  of  the  defendant  to  make  this 
latter  charge.  Some  time  later  the  plaintiff  paid  the  bill  for  repairs, 
and,  under  protest,  the  further  sum  of  £567.  for  storage  charges.  The 
present  action  is  to  recover  the  latter  sum.]*" 

Campbell,  C.  J.  We  are  of  opinion  that,  under  the  circumstances 
stated  in  the  special  case,  the  defendants  are  not  entitled  to  retain  the 
sum  paid  to  them  in  respect  of  the  item  of  £567.,  or  any  other  sum,  as 
a  compensation  for  the  use  of  their  dock  in  detaining  the  plaintiff's 
ship.  As  artificers  who  had  expended  their  labour  and  materials  in 
repairing  the  ship  which  the  plaintiff's  had  delivered  to  them  to  be  re- 
paired, the  defendants  had  a  lien  on  tlie  ship  for  the  amount  of  the 
sum  due  to  them  for  these  repairs ;  but  we  do  not  find  any  ground  on 
which  their  claim  can  be  supported  to  be  paid  for  the  use  of  their  dock 
while  they  detained  the  ship  under  the  lien  against  the  will  of  the  own- 
ers. There  is  no  evidence  of  any  special  contract  for  such  a  payment. 
The  defendants  gave  notice  that  they  would  demand  £21.  a  day  for  the 
use  of  their  dock  during  the  detention ;  but  the  plaintiffs  denied  their 
liability  to  make  any  such  payment,  and  insisted  on  their  right  to  have 
their  ship  immediately  delivered  up  to  them.  Nor  does  any  custom  or 
usage  appear  to  authorize  such  a  claim  for  compensation,  even  suppos- 
ing that  a  wharfinger  with  whom  goods  had  been  deposited,  he  being 
entitled  to  warehouse  rent  for  them  from  the  time  of  the  deposit,  might 
claim  a  continuation  of  the  payment  during  the  time  he  detains  them  in 
the  exercise  of  right  of  lien  till  the  arrears  of  warehouse  rent  due  for 
them  is  paid  (see  Rex  v.  Humphrey.  r^IcCl.  &  Y.  173) ;  there  is  no 
ground  for  a  similar  claim  here,  as  there  was  to  be  no  separate  pay- 
ment for  the  use  of  the  dock  while  the  ship  was  under  repair,  and  the 
claim  only  commences  from  the  refusal  to  deliver  her  up.  The  onus 
therefore  is  cast  upon  the  defendants  to  shew  that,  by  the  general  law 
of  England,  an  artificer  who,  exercising  his  right  of  lien,  detains  a  chat- 
tel, in  making  or  repairing  which  he  has  expended  his  labour  and  ma- 
terials, has  a  claim  against  the  owner  for  taking  care  of  the  chattel 

Pbillips  V.  Vose,  SI  Jle.  134.  16  Atl.  40.",  (ISSS) ;    SLirtin  v.  Wakefield,  42  Minn. 
1T6,  43  N.  W.  966.  6  L.  R.  A.  362  (ISSO) ;    Fish  Creel<  Boom  &  Log-Driving  Co. 
V.  First  Nat.  Bank  of  Ashland.  SO  Wis.  630,  50  X.  W.  5S5  (1S91). 
*5  The  statement  of  facts  Is  rewritten. 


72  POSSESSORX   INTERESTS  IN   CUATTELS  (Cll.  3 

while  it  is  so  detained.  But  the  claim  appears  to  be  quite  novel ;  and, 
on  principle,  there  is  great  difficulty  in  supporting  it  either  ex  con- 
tractu or  ex  delicto.  The  owner  of  the  chattel  can  hardly  be  supposed 
to  have  promised  to  pay  for  the  keeping  of  it  while,  against  his  will,  he 
is  deprived  of  the  use  of  it;  and  there  seems  no  consideration  for  such 
a  promise.  Then  the  chattel  can  hardly  be  supposed  to  be  wrongfully 
left  in  the  possession  of  the  artificer,  when  the  owner  has  been  pre- 
vented by  the  artificer  from  taking  possession  of  it  himself.  If  such  a 
claim  can  be  supported  it  must  constitute  a  debt  from  the  owner  to  the 
artificer,  for  which  an  action  might  be  maintained :  when  does  the  debt 
arise,  and  when  is  the  action  maintainable?  It  has  been  held  that  a 
coachmaker  cannot  claim  any  right  of  detainer  for  standage,  unless 
there  be  an  express  contract  to  that  effect,  or  the  owner  leaves  his 
property  on  the  premises  beyond  a  reasonable  time,  and  after  notice 
has  been  given  to  remove  it ;  Hartley  v.  Hitchcock,  1  Stark.  408. 

The  right  of  detaining  goods  on  which  there  is  a  lien  is  a  remedy  to 
the  party  aggrieved  which  is  to  be  enforced  by  his  own  act ;  and,  where 
such  a  remedy  is  permitted,  the  common  law  does  not  seem  generally 
to  give  him  the  costs  of  enforcing  it.  Although  the  lord  of  a  manor 
be  entitled  to  amends  for  the  keep  of  a  horse  which  he  has  seized  as 
an  estray  (Henly  v.  Walsh,  2  Salk.  686),  the  distrainor  of  goods  which 
have  been  replevied  cannot  claim  any  lien  upon  them  (Bradyll  v.  Ball, 
1  Bro.  C.  C.  427).  So,  where  a  horse  was  distrained  to  compel  an  ap- 
pearance in  a  hundred  court,  it  was  held  that,  after  appearance,  the 
])laintiff  could  not  justify  detaining  the  horse  for  his  keep.  Bui.  N. 
P.  45. 

If  cattle  are  distrained  damage  feasant,  and  impounded  in  a  pound 
overt,  the  owner  of  the  cattle  must  feed  them ;  if  in  a  pound  covert  or 
close,  "the  cattle  are  to  be  sustained  with  meat  and  drink  at  the  peril 
of  him  that  distraineth,  and  he  shall  not  have  any  satisfaction  there- 
fore," Co.  Litt.  47,  6. 

For  these  reasons,  on  the  question  submitted  to  us,  we  give  judgment 
for  the  plaintiffs.** 

46  Affirmed  Exchequer  Chamber,  E.  B.  &  E.  367  (1S59) ;  House  of  Lords, 
S  H.  of  L.  3.38  (1860). 

A.  stored  goods  with  B.,  a  warehouseman,  without  any  express  contract  as 
to  storage  charges.  A.  demanded  the  goods;  B.  refused  to  deliver  them  un- 
til liis  storage  charges  were  paid.  Held,  B.'s  lien  covers  the  storage  charges 
accruing  during  the  time  when  he  was  liolding  the  goods  to  cover  his  claim 
for  the  amount  originally  due.  Devereux  v.  I-loniing  (C.  C.)  53  Fed.  401 
(1S92) ;  Reldenbach  v.  Tuch,  SS  N.  Y.  Supp.  366  (1904),  semble.  See,  as  to 
liverv  stable  keeper,  Folsom  v.  Barrett,  ISO  Mass.  439,  62  N.  E.  723,  91  Am. 
St.  Kep.  320  (1902),  post,  p.  111. 

B.  stored  and  repaired  automobiles.  A.  left  his  automobile  with  B.  to  be 
repaired.  B.  claimed  a  lien  for  his  services,  and  on  A.'s  refusal  to  pay  re- 
tained the  automobile.  Held,  B.  has  a  lien  for  his  storage  charges  during  the 
time  he  so  retained.  Malcolm  v.  Sims-Thompson  Motor  Car  Co.  (Tex.  Civ. 
App.)  164  S.  W.  924  (1914). 

Ace:   As  to  innkeeper,  Black  v.  Brennan,  5  Dana  (Ky.)  310  (1S37),  semble. 


Sec.  2)  BAILOR   AND    BAILEE  73 

THAMES  IRON  WORKS'  CO.  v.  PATENT  DERRICK  CO. 
(Court  of  Chancery,  1S60.    1  John.  &  H.  93.) 

[The  plaintiff  had  a  lien  on  tlie  defendant's  vessel  for  the  sum  of 
illOOO.  The  retention  of  tlie  vessel  was  causing  the  plaintiff  great 
expense  and  they  filed  this  bill  praying  a  declaration  that  they  were  en- 
titled to  a  lien  on  the  vessel  and  that  in  default  of  payment  the  vessel 
might  be  sold  for  the  satisfaction  of  the  debt.] 

The  defendants  demurred. 

Vice-Chancellor  Sir  W.  Page  Wood.^'  I  am  of  opinion  that 
this  demurrer  must  be  allowed.     *     *     * 

As  regards  the  lien  which  I  am  asked  to  enforce  by  sale,  there  is  no 
question  that  it  is  in  its  nature  a  mere  passive  lien.  It  is  not  founded 
upon  any  stipulation  in  the  contract,  but  arises  simply  from  the  usage 
of  trade.  It  has  been  settled  by  numerous  authorities  that  such  a  lien 
does  not,  in  general,  authorize  a  sale.  It  was  argued,  that,  to  create  a 
mere  right  of  retainer,  involving  considerable  expenditure  and  render- 
ing the  subject  of  the  lien  utterly  useless  to  both  parties,  would  be  ab- 
surd ;  and,  to  a  certain  extent,  there  is  authorit)'  to  show  that  this  is 
not  the  law.  The  case  referred  to,  of  a  horse  having  eaten  its  full  val- 
ue, is  one  instance  of  a  right  of  sale  being  held  to  flow  from  a  lien. 
In  one  statement  this  is  said  to  rest  on  the  local  customs  of  London 
and  Exeter,  but  elsewhere  it  is  treated  as  a  general  right.  Whatever 
the  law  may  be,  as  a  matter  of  fact,  it  is  certainly  very  common  for 
such  a  right  to  be  exercised;  for  advertisements,  threatening  to  sell 
horses  or  other  chattels  unless  removed  by  a  given  date,  are  constantly 
to  be  seen.  The  contention  was,  that,  as  a  corollar)'-  from  the  case  I 
have  referred  to,  there  followed  a  general  rule  of  law,  that,  wherever 
the  retaining  of  a  chattel  under  a  lien  occasions  considerable  expense, 
there  the  right  of  sale  must  arise.  But  no  such  doctrine  has  ever  been 
held,  and  the  authorities,  on  the  contran,',  point  to  the  conclusion,  that 
the  right  of  sale  cannot  be  raised  on  the  mere  ground  of  the  expense 
of  retaining  the  chattel  which  is  the  subject  of  the  lien.  If  it  could,  it 
would  arise  in  every  case  of  a  lien  on  bulky  goods,  the  retaining  of 
which  must  involve  warehousing  expenses.  It  is  not  material  to  con- 
sider how  far  such  a  case  as  that  put  by  Stor}%  of  notice  being  given 
that  expense  is  being  incurred,  and,  that  if  the  goods  are  not  removed 
they  will  be  sold,  may  hereafter  be  held  to  justify  a  sale,  because  the 
present  case  does  not  raise  such  a  question.  If  it  did,  it  would  be  nec- 
essary to  analyze  the  right  of  lien,  and  consider  whether  it  amounts  to 
anything  more  than  this— that  a  person  who  chooses  to  insist  on  the 
right  of  retainer  which  the  law  gives,  and  is  willing  to  put  up  with  am' 
inconvenience  which  may  be  the  consequence,  is  at  liberty  to  do  so,  but 

"  Part  of  the  opinion  is  omitted. 


74  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

has  no  further  right.  Even  though  such  an  arrangement  sliould  be 
most  inconvenient  for  both  parties,  it  does  not  follow  that  this  is  not 
the  law. 

The  general  question  as  to  the  law  of  passive  liens  may  possibly  have 
to  be  considered  hereafter;  but  it  is  to  be  observed  that  the  argument 
from  the  inconvenience  or  absurdity  of  giving  a  mere  right  of  retainer 
is  not  confined  to  cases  where  the  keeping  of  the  chattel  involves  ex- 
pense. In  every  case,  as,  for  instance,  that  of  a  solicitor's  lien  on 
deeds,  it  may  be  said  that  the  property  can  be  of  no  benefit  to  either 
party  so  long  as  the  retainer  continues.     *     *     * 

I  can  find  nothing  to  justify  me  in  saying  that  the  right  to  sell  would 
arise  at  law  on  the  ground  of  expense  alone.  *  *  *  Mr.  Waller 
pressed  this  point,  that,  even  if  the  law  did  not  give  a  right  of  sale,  the 
Court,  in  order  to  supply  a  defect  of  the  law  which  causes  great  incon- 
venience in  commercial  transactions,  might  annex  to  the  passive  lien 
the  active  right  of  sale  which  is  necessary  to  make  the  security  effec- 
tual. Upon  this  I  need  only  say,  tliat,  if,  in  a  matter  of  this  magnitude, 
the  Court  should  for  the  first  time  in  1860  establish  such  a  new  right  as 
between  persons  dealing  with  chattels  it  would  injure  rather  than  pro- 
mote commercial  interests.     *     *     *  *» 

48  Ace:  BurrouRh  v.  Ely,  54  W.  Va.  IIS.  4G  S.  E.  371,  102  Am.  St.  Rep. 
926  (190.3).  See  Klack  v.  Biennan,  5  Dana  (Ky.)  310  (1S37) ;  Aliline  Mfg.  Co. 
V.  Phillips,  118  Mich.  162,  76  N.  W.  371,  42  L.  R.  A.  531,  74  Am.  St.  Rep.  380 
(1S98). 

A  factor  to  whom  goods  have  been  consigned  for  sale  and  who  has  a  lion 
thereon  may,  after  reasonable  notice  to  the  consignor,  sell  at  a  fair  price  to 
satisfy  his  lien,  even  thougli  the  consignor  after  the  consignment  Instructeil 
him  not  to  do  so.  Parker  v.  BrancUer,  22  Picl<.  (Mass.)  40  (18.'i9)  ;  Brown  v. 
M'Gran,  14  Pet.  479,  10  L.  Ed.  550  (1840).  Contra,  Smart  v.  Sandars,  5  C.  B. 
895  (1S4S). 

For  statutory  methods  of  enforcing  liens,  see  1  Jones,  Liens,  (3d  Ed.)  § 
1049  et  seci. 

If  the  statutes  of  the  jurisdiction  permit  the  bailor  to  counterclaim  against 
the  lienor  any  damage  done  to  the  goods  by  the  lienor,  the  effect  of  this,  if 
the  damage  equals  or  exceeds  the  claim  of  the  lienor,  is  to  extinguish  the 
lien,  and  the  bailor  may  bring  replevin  for  the  goods  without  tender,  and  a 
refusal  by  the  lienor  to  deliver  them  is  a  conversion.  See  Missouri  I'ac.  R. 
Co.  V.  Peru-Van  Zandt  Implement  Co.,  73  Kan.  302,  85  Pac.  40S,  87  Pac.  SO, 
6  L.  R.  A.  (X.  S.)  1058,  117  Am.  St.  Rep.  468.  9  ^Viin.  Cas.  790  (1906) ;  Bancroft 
V.  Peters,  4  Mich.  619  (1S57) ;  Ewarts  v.  Kerr,  Rice,  Law  (S.  C.)  203  (1839) ; 
Moran  Bros.  Co.  v.  Northern  Pac.  R.  Co.,  19  Wash.  266,  53  Pac.  49.  1101 
(1898).  Contra,  Marlis  v.  New  Orleans  Cold  Storage  Co.,  107  La.  172,  31 
South.  671,  57  L.  R.  A.  271,  90  Am.  St.  Rep.  285  (1901). 

Similarly,  if  the  lienor  converts  the  goods,  he  may  counterclaim  to  the  ex- 
tent of  his  lien  in  an  action  of  trover  by  the  bailor  debtor.  Shaw  v.  Fergu- 
son, 78  Ind.  547  (18S1). 

A.  shipped  goods  by  a  common  carrier  to  himself  as  consignee.  The  goods 
were  damaged  in  transit  to  more  than  the  value  of  the  freight.  The  carrier 
refused  to  deliver  unless  A.  paid  the  usual  freight  charges.  Held,  A.  cannot 
maintain  against  the  carrier  an  action  ex  contractu  for  the  value  of  the 
goods  so  consigned.  Wilensky  v.  Central  of  Georgia  Ry.  Co.,  136  Ga.  889,  72 
S.  E.  418,  Ann.  Cas.  1912D,  271  (1911). 


Sec.  2)  BAILOR    AND    BAILEE  75 

(B)  When  Good  Against  Others  Than  the  Bailor 

WILLIAMS  V.  ALLSUP. 
(Court  of  Common  Pleas,  1861.     10  C.  B.  [N.  S.]  417.) 

[The  plaintiff  advanced  money  to  the  owner  of  a  vessel  and  took 
a  mortgage  thereon  which  was  duly  recorded.  The  vessel  continued 
to  remain  in  the  possession  of  the  mortgagor  and  was  managed  by  him 
in  the  ordinary  way.  The  vessel  became  badly  out  of  repair  and  the 
mortgagor  left  it  with  the  defendant  for  repairs.  These  repairs  were 
duly  completed  and  the  defendant,  the  mortgagor  having  become 
bankrupt,  refused  to  deliver  the  vessel  until  his  claim  was  paid.  The 
repairs  were  reasonable  and  necessary  for  the  safety  of  the  vessel  and 
the  charges  were  reasonable.  The  plaintiff  brought  replevin  for  the 
vessel.] 

ErlE,  C.  J.*"  This  is  an  action  by  the  mortgagee  of  a  steam  vessel 
against  a  shipwright  who  had  done  certain  repairs  on  the  vessel  at  the 
request  of  the  mortgagor,  who  had  been  allowed  to  be  in  the  posses- 
sion and  apparent  ownership.  The  defendant  claims  a  lien  upon  the 
ship  for  the  price  of  these  repairs:  and  I  am  of  opinion  that  that 
claim  is  well  founded.  There  is,  it  seems,  no  authority  to  be  found 
bearing  upon  the  question,  though  I  presume  it  must  have  arisen  many 
times.  I  should  rather  expect  that  it  had  never  been  made  the  sub- 
ject of  litigation  because  the  right  of  lien  has  always  been  admitted 
to  attach.  I  put  my  decision  on  the  ground  suggested  by  Mr.  Mel- 
lish,  viz.  that  the  mortgagee  having  allowed  the  mortgagor  to  con- 
tinue in  the  apparent  ownership  of  the  vessel,  making  it  a  source  of 
profit  and  a  means  of  earning  wherewithal  to  pay  off  the  mortgage 
debt,  the  relation  so  created  by  implication  entitles  the  mortgagor  to 
do  all  that  may  be  necessary  to  keep  her  in  an  efficient  state  for  that 
purpose.  The  case  states  that  the  vessel  had  been  condemned  as  un- 
seaworthy  by  the  government  surveyor,  and  so  was  in  a  condition  to 
be  utterly  unable  to  earn  freight  or  be  an  available  security  or  any 
source  of  profit  at  all.  Under  these  circumstances,  the  mortgagor  did 
that  which  was  obviously  for  the  advantage  of  all  parties  interested : 
he  puts  her  into  the  hands  of  the  defendant  to  be  repaired ;  and,  ac- 
cording to  all  ordinary  usage,  the  defendant  ought  to  have  a  right  of 
lien  on  the  ship,  so  that  those  who  are  interested  in  the  ship,  and  who 
will  be  benefited  by  the  repairs,  should  not  be  allowed  to  take  her 
out  of  his  hands  without  paying  for  them.  The  70th  section  of  the 
Merchant  Shipping  Act,  17  &  18  Vict.  c.  104,  does  not  appear  to  me 
at  all  to  interfere  with  this  view.  It  does  not  to  my  mind  establish  the 
right  of  the  mortgagee  to  the  possession  of  the  ship,  or  negative  the 
lien  of  the  person  doing  the  repairs.  That  section  enacts  that  "a  mort- 
is The  opiuious  of  Willes  aud  Bjles,  JJ.,  are  omitted. 


70  rOSfESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

gagee  shall  not  by  reason  of  his  mortgage  be  deemed  to  be  the  owner 
of  a  ship  or  any  share  therein,  nor  shall  the  mortgagor  be  deemed  to 
have  ceased  to  be  the  owner  of  such  mortgaged  ship  or  share,  except 
in  so  far  as  may  be  necessary  for  making  such  ship  or  share  available 
as  a  security  for  the  mortgage  debt."  The  implication  upon  which  I 
found  my  judgment  is  quite  consistent  with  that  provision.  The  ves- 
sel has  been  kept  in  a  state  to  be  available  as  a  security  to  the  mort- 
gagee, by  her  destruction  being  prevented  by  the  repairs  which  the  de- 
fendant has  done  to  her.  I  think  there  is  nothing  in  the  92nd  section 
to  affect  this  question.  There  is,  no  doubt,  some  difficulty  in  the  case. 
But  it  is  to  be  observed  that  the  money  expended  in  repairs  adds  to 
the  value  of  the  ship;  and,  looking  to  the  rights  and  interests  of  the 
parties  generally,  it  cannot  be  doubted  that  it  is  much  to  the  advantage 
of  the  mortgagee  that  the  mortgagor  should  be  held  to  have  power  to 
confer  a  right  of  lien  on  the  ship  for  repairs  necessary  to  keep  her 
seaworthy.  For  these  reasons,  I  am  of  opinion  that  the  defendant  is 
entitled  to  judgment."" 


STORMS  v.  SMITH. 

(Supreme  Jucliclal  Court  of  Massachusetts,  1SS4.     107  Mass.  201.) 

Tort,  for  the  conversion  of  certain  household  goods.  Trial  in  the 
Sup>erior  Court,  before  Pitman,  J.,  who  reported  the  case  for  the  con- 
sideration of  this  court,  in  substance  as  fbllows: 

One  Merrill  on  July  31,  1S74,  made  a  mortgage  of  the  property  in 

50  Ace:  Watts  v.  Sweeney,  127  Ind.  IIG,  26  N.  E.  6S0,  22  Am.  St.  Rep.  ei.5 
(1S90) ;  Hammoiid  v.  Daiiielsou,  12G  Mass.  294  (1S79) ;  Drummouil  Carriage 
Co.  V.  Mills,  54  Neb.  417,  74  X.  ^Y.  9GG,  40  L.  R.  A.  7G1,  09  Am.  St.  Rep.  719 
(1&9S). 

A.  gave  B.  a  chattel  mortgage  on  certain  cattle.  A.  under  the  terms  of  the 
mortgage  remained  in  possession  of  the  cattle.  Said  mortgage  was  duly  re- 
corded. A.  delivered  the  cattle  to  C,  who  was  engaged  in  the  business  of 
pasturing  cattle,  to  feed  them  during  the  winter.  C.  did  so,  and  claimed  a 
statutory  agister's  lien  upon  the  cattle  against  B.  The  court,  in  sustaining 
the  lien,  said:  "The  mortgagor  retaining  possession  *  *  *  is  not  simply 
an  agent  of  the  mortgagee.  He  can  make  no  contract  on  behalf  of,  or  which 
will  create  any  liability  against,  the  mortgagee;  he  acts  on  his  own  behalf. 
He  is  the  owner,  with  the  duties  of  owner  and  the  powers  of  owner,  except 
as  limited  by  the  restrictions  of  the  mortgage.  Unless  the  mortgagee,  by  ex- 
press contract,  assumes  the  expense  of  the  lieeping  of  the  property,  it  rests 
upon  him.  *  *  *  The  possession  of  the  agister  was  rightful,  and,  the 
possession  being  rightful,  the  keeping  gave  rise  to  the  lien,  and  such  keeping 
was  as  much  for  the  interest  of  the  mortgagee  as  the  mortgagor.  »  *  * 
Such  indebtedness  really  inures  to  his  benefit.  The  entire  value  of  his  mort- 
gage may  rest  upon  the  creation  of  such  indebtedness  and  lien,  as  in  the  case 
at  bar,  where  the  thing  mortgaged  is  live  stock,  and  the  lien  for  food. 
*  *  •  It  is  probable  that  the  amount  of  the  agister's  lien,  as  against  the 
mortgagee,  would  be  fixed,  not  by  the  contract  with  the  mortgagor,  but  by 
the  reasonable  value  of  the  services."  Case  v.  Allen,  21  Kan.  217,  220,  222, 
30  Am.  Rep.  42a  (1S7S). 


Sec.  2)  BAILOR   AND    BAILEE  77 

suit,  which  was  then  at  224  Shawmut  Avenue,  in  Boston,  to  his  father- 
in-law,  \\illiam  R.  Storms,  the  plaintiff's  intestate,  to  secure  the  pay- 
ment of  his  promissory  note  for  S500,  payable  in  one  year ;  this  mort- 
gage was  duly  recorded.  ]Morrill  at  that  time  occupied  two  rooms  in 
the  house,  and  the  property  remained  there  until  September  26,  1877, 
when  he  was  suddenly  compelled  to  remove  therefrom,  and  had  no 
place  in  which  to  store  the  goods.  The  defendant  was  at  that  time 
engaged  in  the  business  of  piano  and  furniture  moving,  and  ^Morrill 
employed  him  to  move  the  goods.  On  the  afternoon  of  the  same  day, 
the  defendant  placed  the  goods  on  two  wagons,  where  at  the  request 
of  Morrill,  they  remained  until  six  o'clock  in  the  evening  of  that  day, 
when  Morrill,  not  being  able  to  find  a  suitable  place  in  which  to  store 
the  goods,  requested  the  defendant  to  store  them,  and  agreed  to  pay 
him  two  dollars  per  load  for  each  month  or  fraction  of  a  month  dur- 
ing which  they  should  be  so  stored.  Thereupon  the  defendant  stored 
the  goods  in  a  room  as  requested  by  Morrill,  and  continued  to  store 
them  in  different  places  in  Boston,  at  Morrill's  request,  until  June  30, 
1880,  when  one  Sherman  came  to  the  defendant's  house,  and,  exhib- 
iting said  mortgage  and  a  power  of  attorney  from  Storms,  declared 
that  he  had  come  to  foreclose  the  mortgage.  This  was  the  first  no- 
tice the  defendant  had  that  there  was  a  mortgage  on  said  goods  and 
he  claimed  the  right  to  retain  them,  on  the  ground  that  he  had  a  lien 
upon  them  for  carriage  and  storage.     *     *     * 

It  was  proved  that  Storms  had  been  informed  that  the  goods  had 
been  removed  from  Shawmut  Avenue,  and  stored  by  the  defendant, 
about  two  months  after  the  removal;  and  there  was  no  evidence  of 
dissent  or  disapproval  on  the  part  of  Storms.  The  removal  was  a 
compulsory  one,  and  the  storing  was  a  necessity  to  prevent  the  good? 
from  exposure  to  loss  and  damage,  v.-hich  might  result  from  their 
being  put  out  and  left  on  the  sidewalk. 

Upon  the  foregoing  facts,  the  judge  ruled  that  this  action  could  be 
maintained ;  and  ordered  a  verdict  for  the  plaintiff.  If  the  ruling 
was  correct,  judgment  was  to  be  entered  on  the  verdict;  otherwise, 
the  verdict  to  be  set  aside,  and  judgment  entered  for  the  defendant. ^^ 

Holmes,  J.  The  mortgagor  of  the  chattels  was  personally  liable 
to  the  defendant  for  their  storage,  and  he  could  not  subject  the  mort- 
gagee's interest  to  a  lien  in  support  of  his  debt  without  the  mortga- 
gee's authority.  The  mortgagee  had  given  no  authority  other  than 
what  was  to  be  implied  from  his  allowing  the  mortgagor  to  remain  in 
possession  of  the  mortgaged  goods,  coupled  with  the  fact  that  it  was 
necessar)'^  that  the  goods  should  be  stored  somewhere  to  prevent  their 
destruction.  If  these  circumstances  were  enough  to  support  the  de- 
fendant's claim,  every  mortgagor  in  possession  of  perishable  goods 
would  have  power  to  create  a  paramount  lien  upon  them,  although 

5 1  The  statement  of  facts  is  abridged. 


78  POSSESSORY   INTERESTS  IN   CHATTELS  (Ch.  3 

the  proviso  against  suffering  them  to  be  attached,  or  attempting  to  sell 
or  remove  them  in  the  form  of  chattel  mortgage  commonly  used,  in- 
dicates pretty  clearly  that  no  such  power  is  intended  to  be  given.  But 
these  circumstances  are  not  enough.  The  mortgage  was  recorded, 
and  the  defendant  therefore  had  notice  of  it.  Hence  he  was  not  at 
liberty  to  assume  that  the  mortgagor  had  an  absolute  jus  disponendi 
from  his  possession  alone ;  and,  if  storage  was  necessary,  he  was 
chargeable  with  notice  that  the  plaintiff  had  a  right  to  judge  for  him- 
self where  it  should  be,  if  his  interest  was  to  be  charged  with  the  cost. 
Richardson  v.  Rich,  104  Mass.  156,  6  .^m.  Rep.  210;  Sargent  v. 
Usher,  55  N.  H.  287.  20  Am.  Rep.  208;  Bissell  v.  Pearce,  28  N. 
Y.  252. 

In  Hammond  v.  Danielson,  126  Mass.  294,  the  description  of  the 
mortgaged  hack  as  "now  in  use  at  the  American  Stables"  was  deemed 
sufficient  to  express  the  intent  that  the  hack  "should  continue  to  be 
driven  for  hire,  and  should  be  kept  in  a  proper  state  of  repair  for  that 
purpose,  not  merely  for  the  benefit  of  the  mortgagee,  but  for  that  of 
the  mortgagor  also."  But  permission  to  a  mortgagor  to  retain  house- 
hold furniture  for  his  own  use  conveys  no  permission  to  store  it  with 
a  third  person  on  account  of  the  mortgagee. 

The  fact  that,  some  time  afterwards,  the  plaintiff  was  informed  that 
the  property  had  been  stored,  does  not  alter  the  case.  He  was  not  in- 
formed that  any  attempt  would  be  made  to  hold  the  goods,  as  against 
him,  or  even  that  the  storage  had  not  been  paid,  and  he  knew  that  the 
defendant  was  chargeable  with  notice  of  his  mortgage,  and  therefore 
of  the  want  of  authority  to  bind  his  property  on  the  part  of  the  mort- 
gagor. Hollingsworth  v.  Dow,  19  Pick.  228 :  Globe  Works  v.  Wright, 
106  Mass.  207.  Sargent  v.  Usher,  55  N.  H.  287,  293,  20  Am.  Rep. 
208.  See,  generally,  Robinson  v.  Baker,  5  Cush.  137,  51  Am.  Dec. 
54;  Gilson  v.  Gwinn,  107  Mass.  126,  9  Am.  Rep.  13.  It  is  still  clearer 
that  no  personal  promise  can  be  implied  from  the  plaintiff's  silence,  as 
argued  for  the  defendant.  For  the  plaintiff  knew  that  the  mortgagor 
had  an  interest  to  protect  the  property  and  had  a  right  to  asslmie  that 
he  contracted  on  his  own  behalf,  as  in  fact  he  did.  Neither  was  the 
plaintiff's  silence  any  fraud,  or  warrant  for  the  defendant's  inferring 
that  the  mortgage  was  fraudulent.  The  plaintiff  had  a  right  to  rely 
on  the  notice  which  the  recording  of  his  mortgage  gave  to  all  the 
world,  and  to  leave  them  to  make  inquiries  if  tliey  wanted  explana- 
tions. 

Judgment  on  the  verdict."^ 

5  2  Ace:  Oilson  v.  Gwinn,  107  Mnss.  126.  9  Am.  Rep.  1.3  (1871);  Baumann 
V.  Post,  16  Daly,  385,  12  N.  T.  Surp.  213  (IS'JO).  common-law  lipns;  Wrii.'ht  v. 
Sherman.  3  S.  D.  290,  52  N.  W.  1093.  17  L.  R.  A.  792  ( ls92) ;  McGhee  v.  Ed- 
wards, 87  Tenn.  506,  11  S.  W.  316.  3  L.  R.  A.  0.54  (1S.X»,  statutorj'  agisters' 
liens ;   Bissel  v.  Pearce,  28  N.  Y.  2.52  (1863).  contract  lien. 

A  borse  mortgaired  to  the  plaintiff,  but  retained  b.v  the  mortgagor,  was 
boarded  at  defendant's  stable.     The  defendant  claimed  a  lien.     The  plaintiff 


Sec.  2)  BAILOR   AND    BAILEE  79 

FITCH  et  al.  v.  NEWBERRY  et  al. 
(Supreme  Court  of  Michigan,  1843.    1  Doug.  1,  40  Am.  Dec.  33.) 

[Replevin  for  taking  and  detaining  65  kegs  of  nails  the  property  of 
the  plaintiff.  A  special  verdict  was  found  upon  which  the  question  was 
submitted  to  the  Supreme  Court.    The  facts  were  as  follows : 

The  plaintiffs  were  doing  business  in  Marshall,  Michigan.  They 
contracted  with  the  New  York  &  Michigan  Line  to  transport  the  nails 
from  Port  Kent,  N.  Y.,  to  Marshall,  Mich.,  and  paid  the  freight  in  ad- 
vance. The  goods  were  duly  shipped  as  directed  but  at  some  point, 
probably  Whitehall,  N.  Y.,  they  were  diverted  to  the  Merchants'  Line. 
The  latter  in  good  faith  transported  the  nails  to  Detroit.  The  mistake 
then  being  disclosed  the  local  agents  and  part  owners  of  the  Merchants' 
Line  refused  to  forward  the  nails  to  Marshall  or  to  deliver  them  to  the 
plaintiff  until  their  freight  charges,  which  exceeded  those  contracted 
for  with  the  New  York  &  Michigan  Line,  were  paid,  claiming  a  lien 
for  the  amount  tliereof  and  for  wharfage.] 

Ransom,  J.^^  Upon  the  facts  found  in  tlie  special  verdict,  several 
questions  were  raised,  but  the  most  important,  and  the  only  one  which 
we  deem  it  necessarj'  to  consider,  is,  whether  the  defendants  had  ac- 
quired a  lien  upon  the  goods,  which  they  could  enforce,  even  against 
the  owners,  the  plaintiff's  in  this  case. 

On  the  part  of  the  defendants,  it  is  contended  that  a  common  car- 
rier who  receives  goods  for  carriage  and  transports  them,  may  detain 
them  by  virtue  of  his  lien,  for  freight,  even  against  the  owner,  in  case 
the  freight  has  been  earned  without  fraud  or  collusion  on  his  part; 
that,  if  goods  be  stolen,  or  otherwise  tortiously  obtained  from  the  legal 
owner,  at  New  York  or  elsewhere,  and  carried  by  a  transportation  line 
from  thence  to  Detroit,  without  a  knowledge  of  the  theft,  on  the  part 
of  the  carrier,  he  would  be  entitled  to  a  lien  for  freight,  even  against 
the  owner.    This  doctrine  is  sought  to  be  maintained  by  the  defendants' 

replevied.  The  following  instruction  to  the  jury  was  held  correct:  "If  the 
plaintiff  believed  *  *  *  that  the  owner  of  the  horse  was  not  himself 
keepins  the  horse,  but  was  boarding  him  at  some  livery  stable  *  *  *  and 
the  plaintiff  made  no  objection,  the  jury  would  be  authorized  to  fiud  *  •  * 
that  the  horse  was  boarded  at  the  defendant's  stable  *  *  *  by  the  con- 
sent of  the  plaintiff,  even  althoush  the  plaintiff  did  not  know  at  which  par- 
ticular livery  stable  »  *  *  the  horse  was  being  boarded."  Lynde  v. 
Parker,  lo.j  Mass.  4S1,  30  X.  E.  74  (1S92K 

The  question  as  to  what  persons  or  interests  statutory  liens  may  be  enforc- 
ed against  frequently  turns  upon  the  language  of  the  statute  creating  the 
lien.  See  Colquitt  v.  Kirkman,  47  Ga.  5.55  (1873) ;  Sidwell  v.  Cincinnati  Leaf 
Tobacco  Warehouse  Co..  65  S.  W.  436,  23  Ky.  Law  Rep.  1501  (1001) ;  Smith 
V.  Stevens,  30  Minn.  303,  31  N.  W.  55  (18861 :  Barrett  Mfg.  Co.  v.  Van  Rouk, 
212  N.  Y.  90,  105  N.  E.  811  (19141 ;  Smith  Auto  Co.  v.  Kaestner  (Wis.)  l.-.O  X. 
W.  738  (1916);  Century  Throwing  Co.  v.  Muller,  197  Fed.  252,  116  C.  C.  A. 
614  (1912). 

t^3  Part  of  the  opinion  is  omitted. 


80  POSSESSORS  INTERESTS  IX  CHATTELS  (Ch.  3 

counsel,  on  several  grounds:  1.  He  insists  that  a  common  carrier  is 
bound  to  receive  goods  which  are  offered  for  transportation,  and  to 
carry  them ;  that  it  is  not  a  matter  of  choice  whether  he  will  receive 
and  carry  them  or  not;   that  he  is  liable  to  prosecution  if  he  refuses. 

2.  That  a  common  carrier  is  not  only  bound  to  receive  and  transport 
goods  that  are  offered,  but  he  is  liable  for  their  loss,  in  all  cases,  ex- 
cept by  the  act  of  God  and  public  enemies;  and  the  same  rule,  he  in- 
sists, applies  to  warehousemen  and  forwarders.  3.  That  the  duties 
and  obligations  of  common  carriers  and  innkeepers,  are,  in  all  respects, 
analogous ;  and  an  innkeeper  is  bound  to  receive  and  entertain  guests, 
and  to  account  for  a  loss  of  their  baggage  while  under  his  care.  4. 
That  a  common  carrier,  being  bound  by  law  to  accept  goods  oft'ered 
him  for  carrying,  and  being  responsible  for  their  safe  delivery  in  all 
cases,  except  when  prevented  by  the  act  of  God  or  public  enemies,  is 
entitled  to  a  lien  for  their  freight,  against  all  persons,  including  even 
tl:e  owner,  when  the  goods  were  tortiously  obtained  from  him ;  that  he 
is  not  bound  to  inquire  into  the  title  of  the  person  who  delivers  them ; 
and  such  lien  exists,  although  there  be  a  special  agreement  for  the  price 
of  carriage.  5.  That  the  master  is  not  bound  (nor  his  agent  for  him) 
to  deliver  any  part  of  a  cargo  until  the  freight  anil  other  charges  are 
paid. 

But  for  the  plaintiffs  it  is  contended :  1.  That  liens  are  only  known 
or  admitted  in  cases  where  the  relation  of  debtor  and  creditor  exists, 
so  that  a  suit  at  law  may  be  maintained  for  the  debt  which  gives  rise 
to  the  lien ;  that  a  lien  is  a  mere  right  to  detain  goods  until  some  charge 
against  the  owner  be  satisfied.  2.  That  the  defendants  obtained  pos- 
session of  the  goods  without  authority  from  the  owners,  either  express 
or  implied ;  that  no  legal  privity  exists  between  the  parties,  and  there- 
fore the  relation  of  debtor  and  creditor  <loes  not  exist  between  the  de- 
fendants or  their  principals  and  the  plaintiffs,  and  no  action  could  be 
maintained  by  either  against  them  for  the  freight,  or  any  part  of  it. 

3.  They  contend  further,  that,  even  if  the  defendants  lawfully  re- 
ceived the  goods  from  the  original  carriers  of  the  plaintiffs,  the  New 
York  &  Michigan  Line,  they  did  so  as  their  agents  and  servants,  and 
were  bound  by  their  agreement  with  the  plaintiffs ;  that  their  contract 
of  affreightment  is  incomplete,  and  therefore  no  freight  is  due. 

That  common  carriers  are  bound  to  receive  goods  which  are  offered 
by  the  owners  or  their  agents  for  transportation,  and  to  carry  them  for 
a  just  compensation,  upon  the  routes  which  they  navigate,  or  over 
which  they  convey  goods  in  the  prosecution  of  their  business,  is  too 
well  settled  to  require  discussion,  although  this  general  proposition  is 
subject  to  some  qualifications.     *     *     * 

That  common  carriers  are  responsible  for  the  safe  conveyance  and 
delivery  of  the  goods  committed  to  them  for  carriage,  is  just  as  con- 
clusively settled  as  that  they  are  bound  to  receive  and  carry  them.   *   *  * 

Another  position  tal<en  by  the  defendants'  counsel,  that  the  duties  of 


Sec.  2)  BAILOR    AND   BAILEE  81 

common  carriers  and  innkeepers  are  analogous,  may  be  admitted.  As  a 
general  proposition  it  cannot  be  denied.  Upon  the  obligations  and  lia- 
bilities imposed  on  common  carriers,  for  the  transportation,  safe  cus- 
tody and  delivery  of  goods,  the  counsel  for  the  defendants  base  a  cor- 
responding right  to  compensation  for  such  transportation  and  delivery 
and  a  lien  on  the  goods  for  its  payment. 

If,  as  contended  for  by  the  defendants,  a  carrier  is  bound  to  receive 
and  carry  all  goods  offered  for  transportation,  without  the  right  of  in- 
quiring into  the  title  or  authority  of  the  person  offering  them,  then 
clearly  he  should  be  entitled  to  a  lien,  even  against  the  owner,  upon  the 
goods,  until  he  is  paid  for  the  labor  he  may  bestow  in  their  car- 
riage.    *     *     * 

There  is  an  obvious  ground  of  distinction  between  the  cases  of  car- 
rying goods  by  a  common  carrier,  and  the  furnishing  keeping  for  a 
horse  by  an  innkeeper.  In  the  latter  case,  it  is  equally  for  the  benefit 
of  the  owner  to  have  his  horse  fed  by  the  innkeeper,  in  whose  custody 
he  is  placed,  whether  left  by  a  thief,  or  by  himself  or  agent;  in  either 
case,  food  is  necessary  for  the  preservation  of  his  horse,  and  the  inn- 
keeper confers  a  benefit  upon  the  owner  by  feeding  him.  But  can  it 
be  said  that  a  carrier  confers  a  benefit  on  the  owner  of  goods  by  carry- 
ing them  to  a  place  where,  perhaps,  he  never  designed,  and  does  not 
wish  them  to  go  ?  Or,  as  in  this  case,  is  the  owner  of  goods  benefited 
by  having  them  taken  and  transported  by  one  transportation  line,  at 
their  own  price,  when  he  had  already  hired  and  paid  another  to  carry 
them  at  a  less  price?  This  distinction  does  not,  however,  at  all  affect 
the  determination  of  the  case  before  us ;  we  place  it  entirely  upon 
other  grounds.     *     *     * 

All  the  other  cases,  in  which  the  general  proposition  is  laid  down 
that  common  carriers  are  bound  to  receive  goods  offered  for  carriage, 
are  evidently  based  upon  the  supposition  that  the  goods  are  there  oft'er- 
ed  by  their  owners  or  their  authorized  agents ;  and  that,  if  in  anj^  way 
they  acquire  possession  of  property  without  consent  of  the  owner,  ex- 
press or  implied,  they,  like  all  other  persons,  may  be  compelled  to  re^ 
store  it  to  such  owner,  or  pay  him  for  its  value.  And  that  the  doctrine 
of  caveat  emptor  applies,  with  the  same  force,  to  that  class  of  persons 
as  to  others,  is  manifest,  I  think,  from  an  examination  of  authorities. 

The  obligation  of  a  common  carrier  to  receive  and  carry  all  goods 
offered,  is  qualified  by  several  conditions,  which  he  has  a  right  to  in- 
sist upon  before  receiving  them.  1.  That  the  person  oft'ering  the  goods 
has  authority  to  do  so.  2.  That  a  just  compensation,  or  the  usual  price, 
be  tendered  for  the  carriage.  And,  3.  That,  although  the  owner,  or 
his  agent,  offers  goods  for  carriage  and  tenders  payment  for  the  freight 
in  advance,  still  he  is  not  bound  to  receive  them,  unless  he  have  the 
requisite  convenience  to^  carry  them. 

In  an  action  brought  against  a  carrier  for  refusing  to  receive  and 
carry  goods,  would  it  not  constitute  a  valid  defense  that  the  plaintiff 
Big.Pehs.I'bop. — G 


82  POSSESSORY  INTERESTS   IN   CHATTELS  (Ch.  3 

had  stolen  them,  although,  at  the  time  of  offering,  the  carrier  may  not 
have  known  they  had  been  stolen  ?     *     *     * 

So,  a  carrier  is  in  all  cases  entitled  to  demand  the  price  of  carriage 
before  he  receives  the  goods,  and,  if  not  paid,  he  may  refuse  to  take 
charge  of  them.  Story  on  Bail.  §  586;  5  Barn.  &  Aid.  353 ;  4  Barn.  & 
Aid.  32;  3  Bos.  &  Pull.  48;  and  Whit,  on  Liens,  92. 

If,  then,  a  common  carrier  may  demand  payment  for  carriage  in  ad- 
vance, and  if  he  may  reject  goods  offered  by  a  wrong-doer,  or  by  one 
having  no  authority  to  do  so,  is  he  not  bound  to  take  care  that  the  per- 
son from  whom  he  receives  them  has  authority  to  place  them  in  his 
custody  ?     *     *     * 

If  it  be  said  for  the  defendants,  that  Allen,  the  master  of  the  vessel 
on  which  the  goods  were  originally  shipped,  or  Eddy  &  Bascomb,  the 
wharfingers  and  forwarders  to  whose  care  at  Whitehall  they  were  con- 
signed, delivered  them  to  the  defendants  or  to  those  from  whom  they 
received  them,  it  may  be  replied  that  if  such  were  the  fact,  it  would  not 
affect  the  rights  of  the  plaintiffs  or  the  liabilities  of  tlie  defendants,  un- 
der the  facts  found  by  the  special  verdict  in  this  case. 

The  jury  have  found  that  the  plaintiff's  contracted  with  the  New 
York  &  Michigan  line,  to  transport  their  goods  to  Detroit,  and  paid 
them  the  stipulated  price  for  tlie  carriage,  in  advance.  The  only  power 
over  the  goods  which  that  line  derived  from  their  contract  with  the 
plaintiffs,  was,  to  safely  carry  and  deliver  them  at  the  place  of  con- 
signment. Thev  had  no  authoritv  to  transfer  them  to  anv  other  line, 
and  make  the  plaintiff's  chargeable  for  the  freight.  And  the  defend- 
ants, under  such  a  transfer,  could  acquire  no  right  to  compensation  for 
freight,  as  against  the  plaintiffs. 

Nor  had  Eddy  &  Bascomb,  from  any  fact  appearing  in  the  case,  any 
authority  to  forward  the  goods,  from  Whitehall,  by  any  conveyance 
other  than  that  which  the  plaintiffs  had  directed,  and  which  appeared 
upon  the  bill  of  lading  that  accompanied  the  goods.  A  special  authori- 
ty must  be  strictly  pursued;  and  whoever  deals  with  an  agent  consti- 
tuted for  a  special  purpose,  deals  at  his  peril,  when  the  agent  passes  the 
precise  limits  of  his  power.  2  Kent's  Com.  631.  No  one  can  transfer 
to  another  a  better  title  than  he  has  himself,  or  a  greater  interest  in  per- 
sonal property,  than  he.  or  the  person  for  whom  he  acts,  possesses: 
Hoffman  v.  Carow,  22  Wend.  (N.  Y.)  318. 

To  create  a  lien  it  is  necessary  that  the  party  vesting  it,  should  have 
the  power  to  do  so.  A  person  can  neither  acquire  a  lien  by  his  own 
wrongful  act,  nor  can  he  retain  one,  when  he  obtains  possession  of 
goods  without  the  consent  of  the  owner,  express  or  implied.  5  T.  R. 
606;  1  Saund.  PI.  &  Ev.  326;  2  Stark.  Ev.  360;  Andrew  v.  Dieterich, 
14  Wend.  (N.  Y.)  31.     *     *     * 

It  seems  to  me  to  be  a  proposition  too  plain  to  be  controverted.  That 
one  man  cannot,  by  his  own  act,  make  another  his  debtor,  without  his 
consent,  will  not  be  questioned.     Consequently,  it  is  not  sufficient  to 


Sec.  2)  BAILOB    AND   BAILEE  83 

create  the  relation  of  debtor  and  creditor,  that  the  plaintiff  should  have 
rendered  services  to  the  defendant,  without  also  showing  that  tlie  de- 
fendant assented  to  the  services,  and  expressly  or  impliedly  agreed  to 
remunerate  the  plaintiff  for  them.     *     *     * 

Finally,  on  a  full  and  careful  consideration  of  this  case,  we  arrive  at 
the  following  conclusions : 

1.  That  a  common  carrier  is  bound  to  receive  and  carry  goods,  only 
when  ottered  for  carriage  by  their  owner  or  his  authorized  agent,  and 
then  only  upon  payment  for  the  carriage  in  advance,  if  required. 

2.  If  a  common  carrier  obtains  the  possession  of  goods  wrongfully, 
or  without  the  consent  of  the  owner,  express  or  implied,  and,  on  de- 
mand, refuses  to  deliver  them  to  the  owner,  such  owner  may  bring  t&- 
plevin  for  the  goods,  or  trover  for  their  value. 

3.  To  justify  a  lien  upon  goods  for  their  freight,  the  relation  of 
debtor  and  creditor  must  exist  between  the  owner  and  the  carrier,  so 
that  an  action  at  law  might  be  maintained  for  the  payment  of  the  debt, 
sought  to  be  enforced  by  the  lien. 

The  facts  set  forth  in  the  special  verdict  found  in  this  case  do  not 
bring  it  within  the  principles  which  justify  the  lien  claimed  by  the  de- 
fendants, and,  therefore,  judgment  for  the  plaintiffs  must  be  entered 
upon  the  verdict,  for  their  damages  for  tlae  detention  of  the  goods  re- 
plevied, and  for  their  costs."* 

5-*  A.  shipped  a  horse  by  the  N.  T.  C.  R.  R.  to  Columbus.  Ohio.  The  horse 
was  accompanied  by  a  hostler.  At  Columbus  the  horse  was  delivered  wrong- 
ly to  the  hostler.  The  latter  shipped  it  to  Georgia  over  the  S.  R.  R.  Held, 
the  S.  R.  R.  has  no  lien  on  the  horse.  Savannah,  F.  &  W.  Co.  v.  Talbot,  123 
Ga.  378,  51  S.  E.  401,  3  Ann.  Cas.  1092  (1905). 

A.  sold  and  delivered  machinery  to  B.,  the  title  to  remain  in  A.  until  the 
price  was  paid.  C,  who  bad  obtained  pos.sesslon  of  the  machinery  from  B., 
delivered  it  to  the  M.  C.  R.  R.  for  carriage.  Neither  C.  nor  B.  claimed  it 
at  its  destination.  B.  was  in  default  in  his  payments  to  A.  Held,  the  rail- 
road has  no  lien  on  the  machinery  for  its  transportation  charges  good  as 
against  A.  Corinth  Engine  &  Boiler  Works  v.  Mississippi  Cent.  R.  Co.,  95 
Miss.  817,  49  South.  261  (1009).  Compare  Singer  Mfg.  Co.  v.  London,  etc.,  R. 
R.  Co..  [1894]  1  Q.  B.  D.  8:33. 

A.  shipped  grain  from  Nebraska  to  B.  in  Colorado  crver  the  U.  P.  R.  R.  to 
Denver,  with  directions  to  forward  from  there  over  the  D.  &  N.  O.  R.  R. 
The  U.  P.  R.  R,,  in  accordance  with  a  contract  with  the  D.  &  R.  G.  R.  R., 
to  forward  all  goods  by  the  latter,  regardless  of  shipping  directions,  so  for- 
warded this  grain.  Held,  the  D.  &  R.  G.  R.  R.  has  no  lien  on  the  grain, 
even  though  it  had  no  knowledge  of  the  shipping  directions  in  the  present 
case.  Denver  &  R.  G.  R.  Co.  v.  Hill,  13  Colo.  35,  21  Pac.  914,  4  L.  R.  A.  376 
(1889).  A  fortiori,  the  second  railroad  has  no  lien,  if  it  knows  the  delivery 
to  it  is  in  violation  of  shipping  directions.  Bird  v.  Georgia  R.  R.,  72  Ga. 
655  (1884). 


84  POSSESSORY  INTERESTS  IN  CHATTELS  (Ch.  3 

PATTEN  V.  UNION  PAC.  RY.  CO. 
(Circuit  Court  of  the  United  States,  District  of  Colorado,  ISSC.    20  Fed.  500.) 

Brewer,  J.  The  facts  in  this  case  are  these:  Plaintiffs  shipped 
from  Kirksville,  Ohio,  to  Denver,  Colorado,  a  car-load  of  lumber. 
They  delivered  it  to  the  Baltimore  &  Ohio  Railroad  Company,  at 
Kirksville,  for  transportation  by  it  to  Chicago,  with  instructions  to 
forward  it  by  the  Chicago  &  Alton  and  the  Atchison,  Topeka  &  Sanla 
Fe  lines.  They  had  made  contract  arrangements  with  the  latter  com- 
pany for  special  rates.  Disregarding  the  instructions,  the  Baltimore 
&  Ohio  Company  delivered  the  car  at  Chicago,  in  the  usual  course  of 
business,  to  the  Chicago,  Rock  Island  &  Pacific  Company,  which,  in 
its  turn,  delivered  it  to  the  defendant,  by  whom  it  was  finally  brought 
to  Denver.  Defendant,  having  paid  all  prior  charges  for  freight  of 
the  Baltimore  &  Ohio  and  the  Chicago,  Rock  Island  &  Pacific  Com- 
panies, claimed  a  lien  for  these  charges,  as  well  as  for  its  own.  Plain- 
tiiTs  declined  to  pay  these  charges,  and  brought  this  action  of  replevin. 
The  contention  of  the  plaintiffs  is  that  the  Baltimore  &  Ohio  Com- 
pany was  a  special  agent,  with  limited  powers,  and  that  it  disregard- 
ed its  instructions,  and  exceeded  its  authority ;  that  the  carriage  by 
the  defendant  company,  as  well  as  the  prior  carrier,  the  Chicago,  Rock 
Island  &  Pacific,  was  without  authority  from  and  against  the  will  of 
the  owners,  and,  being  thus  unauthorized,  created  no  charge  against 
the  owners  for  compensation — no  right  to  a  lien. 

The  principal  case  cited  by  the  plaintiffs  in  support  of  this  view  is 
that  of  Fitch  v.  Newberry,  1  Doug.  (Mich.)  1,  40  Am.  Dec.  33,  which 
unquestionably  sustains  their  position.  In  a  very  elaborate  and  ex- 
haustive opinion  that  court  holds  that  the  forwarding  company  is  only 
a  special  agent,  with  limited  powers ;  that  whoever  deals  with  such 
agent  is  bound  to  take  notice  of  the  extent  of  his  authority ;  and  that 
if  such  agent,  disregarding  his  instructions,  delivers  the  goods  to  the 
wrong  carrier,  the  latter,  although  he  carries  them  to  the  place  of 
destination,  does  so  at  his  own  risk,  is  not  the  debtor  [sic]  of  the 
owner,  and  has  no  claim  for  freight  or  lien  upon  the  goods.  I  cannot 
think,  under  the  present  conditions  of  transportation  business,  the  rule 
therein  announced  is  the  correct  one.  The  true  rule  is  this:  that  a 
carrier,  receiving  goods  for  transmission  over  his  own  line,  and  con- 
signed to  a  place  beyond,  has  the  apparent  authority  to  forward  the 
same  to  the  place  of  destination  by  any  of  the  ordinary  routes  thereto, 
and  that  such  second  carrier,  receiving  the  goods  in  the  usual  and 
ordinary  course  of  business,  without  notice  of  any  special  instructions 
to  the  first  carrier,  and  transporting  the  goods  to  the  place  of  destina- 
tion, is  entitled  to  demand  the  ordinary  and  reasonable  freight  there- 
for. The  question  evidently  turns  upon  the  authority  of  the  first  car- 
rier, and  whether  the  delivery  to  the  second  carrier  is  in  pursuance  of 


Sec.  2)  BAILOR    AND    BAILEE  85 

the  apparent  authority  conferred  upon  the  first.  I  am  aware  of  the 
distinction  that  has  frequently  been  drawn  between  the  case  of  a  gen- 
era! and  that  of  a  special  agent ;  that  the  former  is  presumed  to  have 
all  the  ordinary  powers  necessary  for  the  accomplishment  of  the  busi- 
ness intrusted  to  him,  while  the  latter  is  one  with  limited  and  special 
powers ;  and  the  further  rule  that  one  dealing  with  a  special  agent  is 
bound  to  take  notice  of  the  exact  powers  conferred.  But  this  gen- 
eral rule  has  been  of  late  years  subject  to  considerable  modification. 

The  rule  as  recognized  to-day  is  well  stated  in  1  Pars.  Cont.  44,  as 
follows : 

"It  may,  indeed,  be  said  that- every  agency  is,  under  one  aspect,  spe- 
cial, and  under  another,  general.  No  agent  has  authority  to  be,  in" 
all  respects,  and  for  all  purposes,  an  alter  ego  of  his  principal,  bind- 
ing him  by  whatever  the  agent  may  do  in  reference  to  any  subject 
whatever;  and  therefore  the  agency  must  be  special,  so  far  as  it  is 
limited  by  place  or  time,  or  the  extent  or  character  of  the  work  to  be 
done.  On  the  other  hand,  every  agency  must  be  so  far  general  that 
it  must  cover,  not  merely  the  precise  thing  to  be  done,  but  whatever 
usually  and  rationally  belongs  to  the  doing  of  it.  Of  late  years,  courts 
seem  more  disposed  to  regard  this  distinction,  and  the  rules  founded 
upon  it,  as  altogether  subordinate  to  that  principle  which  may  be  called 
the  foundation  of  the  law  of  agency;  namely,  that  a  principal  is  re- 
sponsible, either  when  he  has  given  to  an  agent  sufficient  authority, 
or  when  he  justified  a  party  dealing  with  his  agent  in  believing  that  he 
has  given  to  this  agent  this  authority." 

It  is  sometimes  expressed  in  another  way ;  and  that  is  that  the  prin- 
cipal is  bound  by  the  acts  of  his  agent,  done  within  the  apparent  scope 
of  the  authority  conferred ;  and  that,  whether  he  be  technically  either 
a  general  or  special  agent.  I  think  that  rule  determines  this  case,  and 
that  a  common  carrier,  having  goods  in  its  possession  consigned  to  a 
point  beyond  its  own  line,  is  clothed  with  the  apparent  authority  to 
forward  those  goods  by  any  of  the  ordinary  and  usual  routes.  In 
Whitney  v.  Beckford,  105  Mass.  271,  the  court  uses  this  language: 

"But  when  the  freight  is  earned  in  good  faith,  under  a  contract  of 
transportation  made  with  an  agent  of  the  owner,  who,  according  to 
the  usages'  of  the  business,  is  clothed  with  apparent  authority  by  its 
principal,  then  the  charges  for  freight  will  constitute  a  valid  lien  upon 
the  property,  although  the  agent,  by  an  accidental  or  intentional  de- 
parture from  his  instructions,  sends  the  goods  by  a  route  not  intended, 
or  to  the  wrong  place." 

Any  other  rule  would  work  a  serious  hindrance  to  the  immense 
transportation  business  of  to-day,  while  this  rule  protects  both  car- 
rier and  owner.  If  the  first  carrier  disobeys  his  instructions,  by  which 
loss  results  to  the  owner,  such  carrier  is  liable  to  an  action  of  dam- 
ages, and  as  is  proper  the  wrongdoer  sufters  the  loss.  At  the  same 
time  the  second  and  innocent  carrier  having  done  the  work  of  trans- 


8G  POSSESSORY   INTERESTS  IN  CHATTELS  (Cll.  3 

portation,  receives,  as  it  ought,  the  just  freight  therefor.  The  first 
carrier  is  tlie  agent  of  the  owner.  If  he  has  done  wrong,  why  should 
not  the  principal  be  remitted  to  his  action  against  his  wrongdoing 
agent,  and  why  should  the  burden  of  litigation  be  cast  upon  the  inno- 
cent second  carrier?  Plaintiffs  say  that,  in  this  case,  they  would  have 
to  go  to  Ohio  to  maintain  their  action ;  but,  if  they  select  an  agent  in 
Ohio,  and  that  agent  does  wrong,  why  should  not  they  go  to  Ohio  to 
punish  him  for  his  wrong.  And  why  should  the  defendant,  innocent 
of  any  wrong  be  forced  to  go  thither  to  litigate  with  their  agent  ?  And 
why  should  the  owner,  who  has  had  his  goods  carried  to  the  place  of 
destination,  be  pennitted  to  take  them  from  the  carrier  without  any 
payment  for  such  transportation?  Is  the  route  by  which  the  freight 
is  transported  a  matter  so  vital  to  him  that,  carried  over  the  wrong 
route,  he  is  entitled  equitably  to  the  possession  of  his  goods  free  from 
any  burden  of  freight? 

One  other  matter  requires  notice.  That  the  Chicago,  Rock  Island 
&  Pacific  Company  received  this  car  at  Chicago,  in  good  faith,  in  the 
usual  course  of  business,  and  w'ithout  actual  notice  of  the  special  in- 
structions to  the  Baltimore  &  Ohio  Company,  is  shown  by  the  testi- 
mony beyond  dispute.  The  lumber  was  in  fact  loaded  in  a  car  belong- 
ing to  the  Chicago  &  Alton  Railroad,  and  so  marked.  It  is  insisted 
by  the  plaintiffs  that  the  use  of  such  a  car  was  implied  notice  to  the 
Chicago,  Rock  Island  &  Pacific  Company  that  the  car  was  to  be 
shipped  over  the  Chicago  &  Alton  Railroad.  I  do  not  think  this  is 
true.  Courts  must  be  presumed  to  be  familiar  with  the  ordinary  facts 
of  transportation;  and  one  of  those  facts  is  that  the  freight  cars  of 
each  road  are  constantly  used  by  other  roads.  Everywhere  one  goes 
he  sees  cars  belonging  to  multitudes  of  railroad  corporations  in  use 
upon  roads  other  than  their  own.  The  frequency  of  this  is  such  that 
it  seems  to  me  no  implication  can  fairly  be  drawn  from  the  fact  that 
the  goods  are  loaded  in  a  car  belonging  to  one  road  that  special  in- 
structions have  been  given  to  ship  over  that  road. 

These  being  the  only  questions  in  the  case,  judgment  must  be  en- 
tered in  favor  of  the  defendant,  for  a  return  of  the  propertv,  or,  upon 
failure  to  do  that,  for  the  amount  of  the  freight  charges,  both  its  own 
and  those  of  the  prior  carriers.-'" 

6  5  See  Schneider  v.  Evans,  25  Wis.  241,  3  Am.  Rep.  56  (1S70). 

Goods  were  sent  from  S.  consigned  to  P.,  "rates  guaranteed  to  P.  by  tlie 
first  carrier."  By  mistake  tlie  destination  P.  was  changed  to  C,  to  which 
the  goods  were  taken.  The  owner  ordered  the  W.  By.  to  carry  them  from 
C.  to  P.  The  W.  Ry.  did  so,  paying  tlie  freight  from  S.  to  C,  which  was  the 
same  as  from  S.  to  P.  This  amount  the  owner  repaid  the  W.  Co.  Held,  it 
has  a  lien  for  its  own  charges,  although  the  total  charges  from  S.  to  C.  to  P. 
exceed  the  guaranteed  rate  from  S.  to  P.  Vaughan  v.  Providence  &  W.  R. 
Ck).,  13  R.  I.  57S  (1SS2). 

"This  conclusion  does  not  at  all  contlict  with  the  decision  in  the  case  of 
Robinson  v.  Baker,  5  Cush.  (Mass.)  137,  51  Am.  Dec.  54  (1S49),  upon  which 
the  plaintiff,  in  support  of  his  position,  chiefly  relies.     For  there  is  an  es- 


Sec.  2)  BAILOR   AND   BAILEE  87 

BROADWOOD  et  al.  v.  GRANARA. 
(Court  of  Exchequer,  1854.    10  Exch.  417.) 

This  was  a  case  stated  for  the  opinion  of  the  Court  by  consent  of 
the  plaintiffs  and  defendant,  and  by  order  of  a  Judge. 

The  declaration  stated  that  the  defendant  converted  to  his  own  use 
the  plaintiff's'  goods,  that  is  to  say,  a  boudoir  grand  pianoforte.  The 
defendant  pleaded,  first,  not  guilty ;  secondly,  that  the  goods  were  not 
the  plaintiff's'.     Upon  which,  issues  were  joined. 

The  plaintiffs  are,  and  at  the  time  of  the  alleged  conversion  were, 
in  partnership  as  manufacturers  of  pianofortes,  in  Great  Pulteney- 
street,  London.  The  defendant  was,  and  is,  the  proprietor  of  an  inn 
or  hotel,  called  the  Hotel  de  I'Europe,  in  Leicester-place,  Leicester 
square. 

In  March,  1853,  a  Monsieur  Hababier,  a  foreigner  and  professional 
pianist,  went  to  reside  at  the  defendant's  hotel,  and  remained  there, 
occupying  apartments,  and  occasionally  taking  his  meals  in  the  house, 
for  some  months.  On  the  28th  of  March,  Monsieur  Hababier,  then  re- 
siding at  the  hotel,  as  before  mentioned,  went  to  the  manufactory  of 
the  plaintiff's  in  Great  Pulteney-street,  and  requested  the  use  or  loan  of 
a  grand  pianoforte.     It  has  been,  and  is,  usual  for  the  plaintiffs  to 

sential  difference  between  the  facts  in  the  present  and  those  which  appeared 
in  that  case.  There  it  was  shown  that  the  plaintiff,  the  owner  of  a  parcel 
of  Hour,  delivered  it  at  Black  Rock,  on  Ixiard  of  one  of  their  canal  boats,  to 
the  Old  Clinton  Line  Company,  who  gave  for  it  bills  of  lading  in  duplicate, 
wherein  they  undertook,  and  agreed  to  transport  it  to  Albany  and  there  de- 
liver it  to  Witt,  the  agent  of  the  Western  Railroad.  The  plaintiff  sent  one  of 
these  bills  of  lading  to  Witt  and  the  other  to  the  consignee  at  Boston  thus 
reserving  to  himself  the  right  and  assuming  the  responsibility  of  giving  to 
Witt  the  directions  under  which  he  was  to  act.  The  service  which  the  Old 
Clinton  Line  Company  was  to  render  was  exclusively  in  their  capacity  as 
common  carriers.  They  had  only  to  carry  the  flour  to  Albany  and  there  de- 
liver it  to  Witt.  They  had  no  other  duty  to  perform ;  no  right  to  exercise 
any  control  over  it  for  any  other  purpose.  They  were  not,  therefore,  the  for- 
warding agents  of  the  plaintiff,  nor  invested  by  liim  with  any  authority  to 
give  directions  as  to  the  further  transportation  of  the  flour,  or  to  make  any 
other  disposition  of  it  than  its  delivery  to  Witt.  Yet  upon  its  arrival  in  Al- 
bany, in  consequence  of  the  inability  of  Witt  immediately  to  receive  and  take 
charge  of  it,  the  agents  of  the  Clinton  Line  Company,  without  right  and  in 
violation  of  their  duty,  shipped  the  flour  to  the  city  of  Xew  Yoi-k,  and  from 
there  to  Boston  in  the  schooner  Lady  Sufi'olk,  whose  owners  claimed  a  right 
to  detain  it  under  a  lien  upon  it  for  the  freight.  But  the  court,  upon  the 
general  principle  that  if  a  carrier,  though  innocently,  receives  goods  from  a 
wrongdoer  without  the  consent  of  the  owner,  express  or  implied,  he  cannot 
detain  them  against  the  true  owners  until  the  freight  or  carriage  is  paid, 
determined  that  they  had  no  lien  upon  the  flour,  and  that  their  claim  to  that 
efliect  could  not  be  sustained.  But  if  they  had  Ijeon  the  forwarding  agents  of 
the  owner  he  would  have  been  responsible  for  their  acts,  and  his  consent  to 
the  diversion  of  the  property  from  its  intended  route  of  transportation  would 
have  resulted  by  implication  from  their  ilircctions,  and  the  respective  carriers 
would  then  have  become  entitled  to  hold  it  under  a  lien  to  secure  payment 
of  the  freight."  Briggs  v.  Boston  ii  L.  U.  Co.,  b  Alien  (.Mass.)  24G,  S3  Am. 
Dec.  626  (1863). 


88  POSSESSOKT   INTERESTS  IN  CHATTELS  (Ch.  3 

lend  pianofortes  to  musical  artists  witliout  charge ;  and  in  compliance 
with  this  rec|ucst  a  grand  pianoforte  was  sent  to  the  before-mentioned 
hotel  for  the  use  of  Monsieur  Hababier.  This  pianoforte  remained 
at  the  hotel  in  possession  of  Monsieur  Hababier,  in  his  apartments, 
until  the  9th  of  June  following,  when  it  was  taken  away  and  replaced 
by  a  boudoir  grand  pianoforte,  also  supplied  by  the  plaintiffs  with- 
out charge  to  Monsieur  Hababier. 

Monsieur  Hababier  remained  at  the  hotel  until  the  27lh  of  June,  and 
during  that  time  incurred  a  bill  for  the  use  of  the  apartments  and  for 
board,  hire  of  carriages,  and  other  accommodation,  to  a  considerable 
amount.  Some  payments  were  made  on  account,  but  at  the  time  of 
the  demand  and  refusal  hereinafter  mentioned,  there  was  a  balance 
due  from  him  to  the  defendant  of  £461.  3s.  5d.,  consisting  in  part  of 
use  of  apartments,  etc.,  after  the  9th  of  June. 

On  the  27th  of  June,  the  plaintiffs'  clerk  applied  to  the  defendant 
for  the  last-mentioned  pianoforte,  and  requested  that  it  might  be  de- 
livered to  him  for  the  plaintiffs.  He,  at  the  same  time,  handed  to  the 
defendant  a  written  authority  from  IMonsieur  Hababier  to  deliver  it 
to  the  plaintiffs.  The  defendant  declined  to  deliver  up  the  pianoforte. 
On  the  following  day,  the  clerk  again  went  to  the  house  of  the  defend- 
ant, taking  with  him  a  van  and  two  porters,  and  again  demanded  the 
pianoforte.  On  this  occasion,  the  defendant  asked  him  if  he  had 
brought  any  money,  and  being  answered  in  the  negative,  said,  "Unless 
Messrs.  Broadwood  pay  my  bill  for  the  rent  of  the  apartments,  I  will 
not  give  up  the  piano." 

It  is  admitted,  for  tlie  purposes  of  this  case,  that  the  hotel  of  the 
defendant  was,  and  is,  an  inn;  and  that  the  defendant  was,  and  is, 
entitled  to  the  rights  of  an  innkeeper. 

The  defendant,  at  all  times  knew  the  pianoforte  in  question  was 
not  the  property  of  Monsieur  Hababier,  but  that  of  the  plaintiffs ;  and 
the  plaintiffs  at  all  times  knew  that  the  said  Monsieur  Hababier  was 
stopping  at  an  hotel.  The  balance  due  to  the  defendant  from  Mon- 
sieur Hababier  is  still  unpaid. 

The  question  for  the  opinion  of  the  Court  is,  whether,  under  the 
above  circumstances,  the  plaintiffs  are  entitled  to  maintain  the  action. 
If  the  Court  shall  be  of  opinion  that  the  action  is  maintainable,  the 
verdict  is  to  be  entered  for  the  plaintiffs,  with  £100.  damages.  If  the 
Court  shall  be  of  opinion  that  the  defendant  had  a  right  to  detain  the 
pianoforte,  then  the  verdict  is  to  be  entered  for  the  defendant. 

Pollock,  C.  B.'^"  We  are  all  of  opinion  that  the  lien  claimed  by  the 
defendant  cannot  prevail.  I  need  not  go  through  the  series  of  deci- 
sions referred  to,  or  the  propositions  propounded  at  the  bar,  because 
the  limited  ground  on  which  I  think  the  plaintiff's  entitled  to  judgment 
is  this — that  there  is  no  case  which  decides  that  an  innkeeper  has  a 

C8  The  opinion  of  Piatt,  B.,  is  omitted. 


Sec.  2)  BAILOR   AND    BAILEE  89 

right  of  lien  under  such  circumstances  as  these.  This  is  the  case  of 
goods,  not  brought  to  the  inn  by  a  traveller  as  his  goods,  either  upon 
his  coming  to  or  whilst  staying  at  the  inn,  but  they  are  goods  fur- 
nished for  his  temporary  use  by  a  third  person,  and  known  by  the  inn- 
keeper to  belong  to  that  person.  I  shall  not  inquire,  whether,  if  the 
pianoforte  had  belonged  to  the  guest,  the  defendant  would  have  had 
a  lien  on  it.  It  is  not  necessary  to  decide  that  point,  for  the  case  finds 
that  it  was  known  to  the  defendant  that  the  pianoforte  was  not  the 
property  of  the  guest,  and  that  it  was  sent  to  him  for  a  special  pur- 
pose. Under  these  circumstances,  I  am  clearly  of  opinion  that  the 
defendant  has  no  lien. 

ParkE,  B.  I  am  of  the  same  opinion.  It  is  not  necessary  to  advert 
to  the  decisions  on  the  subject  of  an  innkeeper's  lien,  because  this  is 
not  the  case  of  goods  brought  by  a  guest  to  an  inn  in  that  sense  in 
which  the  innkeeper  has  a  lien  upon  them ;  but  it  is  the  case  of  goods 
sent  to  the  guest  for  a  particular  purpose,  and  known  by  the  innkeeper 
to  be  the  property  of  another  person.  It  therefore  seems  to  me  that 
there  is  no  pretence  for  saying  that  the  defendant  has  any  Hen.  The 
principle  on  which  an  innkeeper's  lien  depends  is,  that  he  is  bound  to 
receive  travellers  and  the  goods  which  they  bring  with  them  to  the  inn. 
Then,  inasmuch  as  the  effect  of  such  lien  is  to  give  him  a  right  to 
keep  the  goods  of  one  person  for  the  debt  of  another,  the  lien  cannot 
be  claimed  except  in  respect  of  goods  which,  in  performance  of  his 
duty  to  the  public,  he  is  bound  to  receive.  The  obligation  to  receive 
depends  on  his  public  profession.  If  he  has  only  a  stable  for  a  horse 
he  is  not  bound  to  receive  a  carriage.  There  was  no  ground  whatever 
for  saying  that  the  defendant  was  under  an  obligation  to  receive  this 
pianoforte. 


Judgment  for  plaintiffs. 


6T 


ROBBINS  &  CO.  V.  GRAY. 
(Court  of  Appeals.     [ISOo]  2  Q.  B.  Div.  501.) 

The  action  was  brought  to  recover  from  the  defendant,  an  innkeeper, 
certain  sewing-machines,  the  property  of  the  plaintiffs,  which  they  al- 
leged were  wrongfully  detained  by  the  defendant. 

The  plaintiffs  were  a  firm  of  dealers  in  sewing-machines  and  other 
articles.  In  1894  they  had  in  their  employment  as  a  commercial 
traveller  one  Green,  who  canvassed  for  orders  and  sold  their  goods 
upon  commission.  In  April,  1894,  Green,  for  the  purposes  of  his  busi- 
ness as  such  commercial   traveller,  went  to  stay  at  the  defendant's 

15'  A.  stole  B.'s  horse  and  was  arrested  with  the  animal  in  his  possession. 
It  was  turned  over  by  the  police  to  C,  an  innkeeper,  who  fed  it  for  several 
weeks.  Held,  C.  has  no  lien  on  the  horse  as  against  B.  Biuns  v.  Bigot,  9  C.  & 
P.  208  (1S40). 


90  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

hotel,  taking  with  him  sewing-machines,  the  property  of  his  employers, 
for  the  purpose  of  selling  tliem  to  customers  in  the  neighborhood.  He 
remained  there  until  the  end  of  July.  Whilst  there  the  plaintiffs  sent 
to  him  from  time  to  time  more  sewing-machines  for  the  same  pur-' 
pose.  At  the  end  of  July  Green  left  the  hotel  without  paying  his  bill 
for  board  and  lodging,  and  he  left  there  some  of  the  machines  so 
sent.  Before  the  defendant  received  into  his  hotel  the  macliines  so 
sent,  and  before  Green  had  incurred  his  debt  for  board  and  lodging, 
the  defendant  had  been  expressly  told  by  the  plaintiffs  that  the  ma- 
chines were  their  property,  and  not  the  property  of  Green ;  but  he 
received  the  goods  into  his  hotel  as  Green's  baggage.  The  defendant 
claimed  a  lien  for  the  amount  of  Green's  debt  upon  the  machines  left 
by  him  at  the  hotel. 

On  the  above  facts  the  learned  judge  gave  judgment  for  the  de- 
fendant. 

The  plaintiffs  appealed. 

Lord  Esher,  M.  R.*'  I  have  no  doubt  about  this  case.  I  protest 
against  being  asked,  upon  some  new  discovery  as  to  the  law  of  inn- 
keeper's lien,  to  disturb  a  well-known  and  very  large  business  carried 
on  in  this  country  for  centuries.  The  duties,  liabilities,  and  rights  of 
innkeepers  with  respect  to  goods  brought  to  inns  by  guests  are  found- 
ed, not  upon  bailment,  or  pledge,  or  contract,  but  upon  the  custom  of 
the  realm,  with  regard  to  innkeepers.  Their  rights  and  liabilities  are 
dependent  upon  that,  and  that  alone ;  they  do  not  come  under  any 
other  head  of  law.  What  is  the  liability  of  an  innkeeper  in  this  re- 
spect? If  a  traveller  comes  to  an  inn  with  goods  which  are  his  lug- 
gage— I  do  not  say  his  personal  luggage,  but  his  luggage — the  inn- 
keeper by  the  law  of  the  land  is  bound  to  take  him  and  his  luggage 
in.  The  innkeeper  cannot  discriminate  and  say  that  he  will  take  in 
the  traveller  but  not  his  luggage.  If  the  traveller  brought  something 
exceptional  which  is  not  luggage — such  as  a  tiger  or  a  package  of 
dynamite — the  innkeeper  might  refuse  to  take  it  in ;  but  tlie  custom 
of  tlie  realm  is  that,  unless  there  is  some  reason  to  the  contrary  in  the 
exceptional  character  of  the  things  brought,  he  must  take  in  the  trav- 
eller and  his  goods.  He  has  not  to  inquire  whether  the  goods  are  the 
property  of  the  person  who  brings  them  or  of  some  other  person.  If 
he  does  so  inquire,  the  traveller  may  refuse  to  tell  him,  and  may  say, 
"What  business  is  that  of  yours?  I  bring  the  goods  here  as  my  lug- 
gage, and  I  insist  upon  j^our  taking  them  in;"  or  he  may  say,  "They 
are  not  my  property,  but  I  bring  them  here  as  my  luggage,  and  I  in- 
sist upon  your  taking  them  in;"  and  then  the  innkeeper  is  bound  by 
law  to  take  them  in.  Again,  suppose  the  things  brought  are  such 
things  as  the  innkeeper  is  not  bound  to  take  in,  he  may,  as  I  have  said, 
refuse  to  take  them  in  although  the  traveller  demands  that  they  shall 

58  The  opiuious  of  Kay  and  Smith,  LL.  J.,  are  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  91 

be  taken  in  as  his  luggage;  but  if  after  that  the  innkeeper  changes 
his  mind  and  does  take  them  in,  tlien  they  are  in  the  same  position 
as  goods  properly  offered  to  the  innkeeper  according  to  the  custom 
of  the  realm.  Then  the  innkeeper's  liability  is  not  that  of  a  bailee 
or  pledgee  of  goods;  he  is  bound  to  keep  them  safely.  It  signifies 
not,  so  far  as  that  obligation  is  concerned,  if  they  are  stolen  by  bur- 
glars, or  by  the  servants  of  the  inn,  or  by  another  guest ;  he  is  liable 
for  not  keeping  them  safely  unless  they  are  lost  by  the  fault  of  the 
traveller  himself.  That  is  a  tremendous  liability;  it  is  a  liability  fixed 
upon  the  innkeeper  by  the  fact  that  he  has  taken  the  goods  in;  and  by 
law  he  has  a  lien  upon  them  for  the  expense  of  keeping  tliem  as  well 
as  for  cost  of  the  food  and  entertainment  of  the  traveller.  By  law  that 
lien  can  be  enforced,  not  only  against  the  person  who  has  brought 
goods  into  the  inn,  but  against  the  real  and  true  owner  of  them.  That 
has  been  the  law  for  two  or  three  hundred  years ;  but  to-day  some 
expressions  used  by  judges,  and  some  questions — immaterial,  as  it 
seems  to  me — which  have  been  left  to  juries,  are  relied  on  to  estab- 
lish that  if  the  innkeeper  knows  that  the  goods  are  not  the  goods  of 
the  person  who  brings  them  to  the  inn,  he  may  refuse  to  take  them 
in ;  or,  if  he  does  take  them  in,  he  has  no  lien  upon  them.  One  can- 
not help  asking,  What  is  his  liability  supposed  to  be  if  he  does  take 
in  goods  under  such  circumstances?  It  must  be  borne  in  mind  that 
goods  brought  into  an  inn  are  not  exclusively  in  the  possession  of  the 
innkeeper ;  the  person  who  brings  them  may  deal  with  them :  he 
may  take  them  out  of  a  box  in  a  room  or  passage  without  the  knowl- 
edge of  the  innkeeper,  though  the  latter  is  bound  to  see  that  no  one 
else  interferes  with  them.  Now,  is  there  any  decided  case  in  which 
it  has  been  held  that,  although  goods  have  been  brought  to  an  inn 
as  the  luggage  of  the  traveller  and  received  as  such  by  the  innkeeper, 
he  has  no  lien  upon  them  if  he  knows  that  they  are  not  the  goods  of 
the  traveller?  There  is  not  one  such  case  to  be  found  in  the  books. 
It  was  said  that  Broadwood  v.  Granara,  10  Ex.  417,  was  such  a  case. 
But  there  the  proposition,  that  if  a  guest  brings  goods  into  art  inn  as 
his  luggage  they  must  be  treated  as  if  they  were  his  goods,  was  fully 
recognised..  The  judges  held  in  that  case  that  a  piano,  not  brought 
to  the  inn  by  the  guest  as  his  luggage,  but  sent  in  by  a  tradesman  for 
the  guest  to  play  upon  during  his  stay  at  the  inn,  was  not  offered  to,  nor 
taken  possession  of  by,  the  innkeeper  under  the  custom  of  the  realm 
as  the  luggage  of  the  guest,  and  therefore  that  the  piano  was  not  sub- 
ject to  the  innkeeper's  lien.  Whether  we  should  have  agreed  with 
that  decision  is  immaterial.  The  case  was  expressly  decided  on  the 
ground  that  the  law  of  innkeepers  did  not  apply.  It  is,  therefore,  no 
authority  in  the  case  now  before  us,  where,  as  the  learned  judge  in 
the  Court  below  has  found,  the  goods  were  brought  to  die  inn  as  the 
goods  of  the  traveller  and  accepted  as  his  goods  by  the  innkeeper.  If 
we  were  to  accede  to  the  argument  for  the  appellants  we  should  be 


92  POSSESSORY  INTERESTS  IN  CHATTELS  (Cll.  3 

making  a  new  law,  and  our  decision  would  produce  in  very  many  cases 
great  confusion  and  hardship.  I  am  of  opinion  that  an  innkeeper  is 
bound  to  take  in  goods  with  which  a  person  who  comes  to  the  inn  is 
travelling  as  his  goods,  unless  tlaey  are  of  an  exceptional  character; 
that  the  innkeeper's  lien  attaches,  and  that  the  question  of  whose  prop- 
erty the  goods  are,  or  of  the  innkeeper's  knowledge  as  to  whose  prop- 
erty they  are,  is  immaterial. 

This  appeal  should,  therefore,  be  dismissed."' 


COOK  V.  KANE. 
(Supreme  Court  of  Oregon,  ISSG.     13  Or.  4S2,  11  Pae.  22G,  57  Am.  Rep.  28.) 

Lord,  J.°°  This  suit  was  instituted  by  the  plaintiff  as  an  innkeeper 
to  enforce  a  lien  against  a  piano,  put  in  his  possession  by  the  defend- 
ant as  his  guest,  for  a  debt  due  for  lodging  and  entertainment.  By 
the  facts  stipulated,  it  is  admitted  that  the  relation  of  innkeeper  and 
guest  existed  between  the  plaintiff  and  defendant  when  the  plaintiff, 
at  the  request  of  the  defendant,  paid  the  freight  charges  on  the  piano, 
and  took  it  into  his  custody ;  that  the  piano  was  in  fact  the  property 
of  a  third  person,  who  had  consigned  it  to  the  defendant  to  sell  on 
commission,  but  tliat  the  plaintiff  did  not  know  it  was  the  property 
of  such  third  person,  but  received  it  in  his  character  as  an  innkeeper 
and  as  the  property  of  his  guest.  Upon  this  state  of  facts,  we  are 
to  inquire  whether  the  piano  is  chargeable  with  an  innkeeper's  lien 
for  board  and  lodging  furnished  his  guest. 

At  common  law,  the  liability  of  an  innkeeper  for  the  loss  of  the 
goods  of  his  guest  is  special  and  peculiar,  and  like  that  of  the  com- 
mon carrier,  is  founded  on  grounds  of  public  policy.  It  must  not, 
however,  be  confounded  with  that  of  a  common  carrier;  the  liabil- 
ities, though  similar,  are  distinct.  Clark  v.  Burns,  118  Mass.  275, 
19  Am.  Rep.  456;  Schouler  on  Bailments,  259.  Whatever  contro- 
versy may  exist  in  the  judicial  mind  as  to  the  true  measure  of  the  inn- 
keeper's resyjonsibility  it  cannot  be  denied  that  his  liability  for  the  loss 
of  the  goods  of  his  guest  is  extraordinary  and  exceptional.  Schouler 
on  Bailments,  261,  and  notes;  Coggs  v.  Bernard,  1  Smith's  Lead.  Cas. 
(.\m.  Notes)  401.  Compelled  to  afford  entertainment  to  whomsoever 
may  apply  and  behave  with  decency,  the  law,  as  an  indemnity  for  the 
extraordinary  liabilities  which  it  imposes,  has  clothed  the  innkeepef 
with  extraordinary  privileges.     It  gives  him,  as  a  security  for  unpaid 

09  Accord:  Brown  Shoe  Co.  v.  Hunt,  103  Iowa,  586,  72  N.  W.  7C5,  39  L.  R. 
A.  291,  64  Am.  St.  Rep.  19S  (1S97) ;  Waters  &  Co.  v.  Gerard.  189  N.  Y.  302, 
82  N.  E.  143,  24  I..  R.  A.  (N.  S.)  958,  121  Am.  St.  Rep.  886  (1907),  statute. 

60  Parts  of  the  opinions  of  Lord  and  Thayer,  JJ.,  are  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  93 

charges,  a  lien  upon  the  property  of  his  guest,  and  upon  the  goods  put 
by  the  guest  into  his  possession.  Overton  on  Liens,  129.  Nor  is  the 
lien  confined  to  property  only  owned  by  the  guest,  but  it  will  attach 
to  the  property  of  third  persons  for  whom  the  guest  is  bailee,  provided 
only  he  received  the  property  on  the  faith  of  the  innkeeping  relation. 
Schouler  on  Bailments,  292 ;  Calye's  Case,  1  Smith's  Lead.  Cas.  247 ; 
Manning  v.  Hollenbeck,  27  Wis.  202.  But  the  lien  will  not  attach  if 
the  innkeeper  knew  the  property  taken  in  his  custody  was  not  owned 
by  his  guest,  nor  had  any  right  to  deposit  it  as  bailee  or  otherwise,  ex- 
cept perhaps  some  proper  charge  incurred  against  the  specific  chattel. 

In  Broadwood  v.  Granara,  10  Exch.  417,  the  innkeeper  knew  that 
the  piano  sent  to  the  guest  did  not  belong  to  him,  and  did  not  receive 
it  as  part  of  the  guest's  goods;  and  it  was  on  that  ground  alone  he 
was  held  not  entitled  to  his  lien.  But  in  Threfall  v.  Borwick,  L.  R. 
7  Q.  B.  210,  where  the  innkeeper  had  received  the  piano  as  part  of 
the  goods  of  his  guest,  it  was  held  he  had  a  lien  upon  it.  Miller,  J., 
said :  "When,  having  accommodation,  he  has  received  the  guest  with 
his  goods,  and  thereby  has  become  liable  for  their  safe  custody,  it 
would  be  hard  if  he  was  not  to  have  a  lien  upon  them.  And  under 
such  circumstances,  the  lien  must  be  held  to  extend  to  goods  which 
he  might  possibly  have  refused  to  receive."  Lusk,  J.,  said:  "I  am  of 
the  same  opinion.  The  innkeeper's  lien  is  not  restricted  to  such  things 
as  a  traveling  guest  brings  with  him  in  journeying;  the  contrary  has 
been  laid  down  long  ago.  It  extends  to  all  goods  the  guest  brings 
with  him  and  the  innkeeper  receives  as  his.  If  he  has  this  lien  as 
against  the  guest,  the  cases  have  established  beyond  all  doubt  that  he 
has  the  same  right  as  against  the  real  owner  of  the  article,  if  it  has 
been  brought  to  the  inn  by  the  guest  as  owner."     *     *     * 

Whenever,  by  virtue  of  the  relation  of  innkeeper  and  guest  the  law 
imposes  this  extraordinary  responsibility  for  the  goods  of  the  guest, 
it  gives  the  innkeeper  a  corresponding  security  upon  the  goods  put 
by  the  guest  into  his  possession.  It  is  true  that  the  piano  was  shipped 
to  the  defendant  in  his  name,  but  he  brought  it  to  the  inn  as  his  prop- 
erty, or  at  least  it  was  brought  there  at  his  request  and  upon  his  order, 
and  put  in  the  custody  and  possession  of  the  plaintiff  as  the  property  of 
his  guest.  It  is  admitted  that  the  plaintiff  received  it  as  an  innkeeper, 
and  safely  kept  it  as  the  property  of  his  guest;  nor  is  it  doubted  but 
what  he  would  have  been  liable  for  its  loss;  and  in  such  case,  it  is 
difficult  to  perceive  upon  what  principle  of  law  or  justice  he  can  be 
denied  his  lien.     The  judgment  must  be  affirmed. °^ 

Waldo,  C.  J.,  concurring. 

Thayer,  J.  (dissenting).  *  *  *  Upon  the  main  question  in  the 
case,  there  is  some  doubt  in  view  of  the  authorities  upon  the  subject. 

«iAcc.:  Threfall  v.  Borwick,  L.  R.  7  Q.  B.  711  (1S72) ;  Joiips  v.  Morrill, 
42  Barb.  (N.  Y.)  623  (1SC4).    Compare  Covington  v.  Newberger,  99  X.  C.  523, 


94  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

Though  upon  a  common-sense  view  there  would  not  seem  to  be  any. 
That  the  man  Kane  could  pledge  the  appellant's  piano  for  his  own 
hotel  bill,  or  in  any  way  subject  it  to  the  payment  thereof,  would  shock 
all  sense  of  property  right.  The  respondent's  counsel,  however,  have 
cited  numerous  cases  where  such  a  lien  has  attached  to  the  property 
of  a  third  person,  and  I  have  no  doubt  but  that  .such  lien  will  in  many 
cases  attach  to  the  property  taken  by  the  guest  to  the  inn,  at  which 
he  obtains  accommodations,  though  he  be  not  the  owner  of  it.  But 
in  all  such  cases,  it  seems  to  me  the  property  must  derive  some  spe- 
cial benefit,"-  or  else  the  owner  must  have  intrusted  it  to  a  party  un- 
der circumstances  from  which  he  could  reasonably  have  concluded  that 
the  party  would  become  the  guest  of  an  inn,  and  take  the  property  with 
him  there  as  his  own;"'  and  I  do  not  think  the  rule  should  extend 
further  than  this.  In  the  case  under  consideration,  it  does  not  ap- 
pear that  the  appellant  ever  knew  that  Kane  was  stopping  at  a  hotel. 
He  sent  the  piano  to  him  at  Baker  City,  to  sell  upon  commission.  It 
does  not  appear  that  the  respondent  furnished  the  entertainment  upon 
the  credit  of  the  piano,  or  upon  the  supposition  that  it  belonged  to 
Kane.  The  latter  might,  and  so  far  as  I  can  see,  would  have  continued 
a  guest  at  the  hotel  the  same  whether  the  piano  had  been  sent  or  not.  It 
is  not  a  case,  as  I  view  it,  where  the  owner  of  the  property  has  clothed 
another  with  the  indicia  of  ownership,  and  a  third  person  been  de- 
ceived thereby  into  purchasing  it,  or  giving  credit  upon  the  faith  of 
such  indication.  It  was  purely  a  business  transaction.  The  appellant 
was  attempting  to  make  sale  of  his  property,  and  sent  it  to  Kane  for 
that  purpose.  The  latter  had  no  authority  in  the  premises,  except  to 
exercise  the  special  power  conferred,  and  it  does  not  appear  but  that 
the  respondent  had  full  knowledge  of  the  facts,  as  the  appellant  al- 
leged he  did  in  his  answer.  I  am  inclined  to  believe  that  the  burden 
of  proof  was  upon  the  respondent  to  establish  that  he  supposed  the 
piano  to  belong  to  Kane,  and  that  he  entertained  him  upon  the  faith 
that  such  was  tlie  fact,  before  he  could  claim  a  lien  upon  it  for  the 
hotel  bill.  The  property  of  one  man  should  not  be  taken  for  the  debt 
of  another  against  the  former's  consent,  imless  he  has  done  some  act 
or  neglected  some  duty  creating  the  liability.  A  party  cannot  be  de- 
prived of  his  ownership  to  property  to  satisfy  the  claim  of  another, 
unless  he  has  in  some  form  obligated  himself  to  submit  to  it.     He 

6  S.  E.  205  (ISSS).  As  to  the  effect  of  notice  of  ownership  by  another  after 
receipt  of  luggage,  see  Lurch  v.  Wilson,  62  Misc.  Rep.  259,  114  N.  Y.  Supp. 
789  (1909). 

On  statutory  Innkeepers'  liens,  see  Torrey  v.  McClellan,  17  Tex.  Civ.  App. 
371,  43  S.  W.  64  (1S97) ;  Wertheimer-Swarts  Shoe  Co.  v.  Hotel  Stevens  Co.,  38 
Wash.  409,  80  Pac.  569,  107  Am.  St.  Rep.  S64.  3  Ann.  Gas.  625  (1905). 

62  Ace:  Domestic  Sewing  Machine  Co.  v.  Watters,  50  Ga.  573  (1S74),  statute. 

8  3  Ace:   PollJ  &  Co.  V.  Melenbacker,  136  Mich.  611,  99  X.  W.  867  (1904). 


Sec.  2)  BAILOR    AND    BAILEE  95 

must  have  agreed  to  it  in  terms,  or  have  done  some  act  directly  or 
remotely  authorizing  it.  I  do  not  think  that  the  pleadings  and  agreed 
facts'  in  this  case  establish  that  the  respondent  had  any  lien  upon  the 
piano  for  the  hotel  bill  against  Kane,  or  for  anything  beyond  the  sum 
advanced  by  the  respondent  for  the  freight  and  transportation  of  it, 
unless  it  be  for  its  storage ;  but  the  instrument  has  doubtless  been 
used  sufficiently  to  offset  any  sum  for  storage,  and  the  appellant  duly 
tendered  the  amount  advanced  as  freight  and  transportation. 
I  think  the  decree  should  be  reversed  as  to  the  appellants. 


GORDON  V.  SILBER. 
(Court  of  Queen's  Bench  Division,  1S90.     L.  K.  25  Q.  B.  Div.  491.) 

Lopes,  L.  J.  This  is  an  interesting  and  important  case,  and  raises 
a  question  which  could  not  have  arisen  before  the  Alarried  Women's 
Property  Act,  1882.  The  claim  is  made  by  the  plaintiffs,  the  propri- 
etors of  the  Hotel  Metropole,  against  Mr.  Martin  Silber  and  his  wife, 
Lady  Lucy,  to  recover  £340.  4s.  Id.,  the  balance  of  a  hotel  bill.  Lady 
Lucy  has  separate  propertjs  and  the  claim  is  made  against  her  on  that 
ground.  The  separate  property  is  admitted.  j\Ir.  Martin  Silber,  has 
become  insolvent,  whence  this  action. 

The  facts  may  be  shortly  stated  thus.  Before  May,  1889,  Mr. 
Martin  Silber  had  been  staying  at  the  Hotel  Metropole  by  himself 
and  had  incurred  expenses  which  he  had  paid.  In  May  he  was  joined 
by  his  wife;  she  subsequently  left  for  a  fortnight,  and  then  again 
joined  her  husband  at  the  Hotel  Metropole ;  he  met  her  at  the  sta- 
tion :  they  came  to  the  hotel  with  a  large  quantity  of  luggage,  and  were 
received  there,  occupying  the  same  rooms  which  they  had  previously 
occupied.  They  continued  to  live  there  together  until  August  27,  when 
Mr.  ^lartin  Silber  left.  Lady  Lucy  remaining  there  until  September 
4,  when  she  left.  Mr.  Martin  Silber  had  made  payments  on  account. 
The  plaintiffs  claimed  the  balance  of  the  bill  from  Lady  Lucy,  and 
sought  to  make  her  separate  property  liable.  I  was  of  opinion  that 
their  claim  could  not  be  sustained  against  Lady  Lucy,  on  the  ground 
that  Mr.  Martin  Silber  was  the  contracting  party,  to  whom  credit 
fas  Mr.  Hollands,  the  proprietor,  candidly  admitted)  had  been  given. 
But  the  separate  property  of  Lady  Lucy  in  the  shape  of  trunks,  boxes, 
and  their  contents  had  been  detained  by  the  plaintiffs  as  and  for  their 
lien  in  respect  of  the  unpaid  balance,  and  the  return  of  this  separate 
property  was  claimed  by  Lady  Lucy  in  her  counter-claim.  This  raises 
the  important  question  in  this  case. 

The  question  is,  were  the  plaintiffs  entitled  to  retain  these  last-men- 


9G  POSSESSORY  INTERESTS   IN   CHATTELS  (Cll.  3 

tioned  goods  of  Lady  Lucy?  They  were  unquestionably  her  separate 
property,  but  were  brought  into  the  hotel  and  there  received  by  the 
plaintiffs  at  the  time  when  Mr.  Martin  Silber  with  his  wife  became 
the  guests  of  the  plaintiffs.  The  plaintiffs  as  innkeepers  were  bound 
to  receive  tlie  defendants  and  their  goods,  and  were  bound,  so  long 
as  the  defendants  remained  guests  at  the  hotel,  to  keep  safely  and  se- 
curely their  goods;  and  the  plaintiffs  would  have  been  liable  in  dam- 
ages if  these  goods  had  been  lost.  How  did  the  plaintiffs  receive  them? 
They  knew  of  no  distinction  between  the  goods  of  husband  and  wife, 
and  could  not  inquire  into  their  respective  titles  to  the  goods.  They 
received  them  as  the  goods  of  Mr.  Martin  Silber  and  his  wife,  who 
became  their  guests.  Suppose  Mr.  Martin  Silber  had  stolen  the  goods, 
still  if  the  plaintiff's  received  them  with  their  guests  the  lien  would  have 
attached. 

By  the  common  law  of  England  every  person  who  keeps  a  common 
inn  is  under  an  obligation  to  receive  and  aft'ord  proper  entertainment 
to  every  one  who  offers  himself  as  a  guest,  if  there  be  sufficient  room 
for  him  in  the  inn,  and  no  good  reason  for  refusing  him.  The  inn- 
keeper is  under  an  obligation  to  keep  the  goods  of  a  guest  received 
into  the  inn  safely  and  securely,  and  can  be  sued  and  made  liable  in 
damages  if  he  fails  in  this  respect.  As  a  compensation  for  the  burden 
thus  imposed  upon  him,  the  law  has  given  him  a  lien  upon  the  goods 
of  the  guest  until  he  discharges  the  expenses  of  his  lodging  and  food. 
If  the  guest  has  brought  goods  to  the  inn  to  which  he  has  no  title,  this 
will  not  deprive  the  innkeeper  of  his  lien,  because  he  is  obliged  to  re- 
ceive the  guest  without  inquiries  as  to  his  title.  It  seems,  therefore, 
that  the  lien  is  commensurate  with  the  obligation  to  receive  the  guests 
and  to  keep  safely  and  securely  his  goods.  The  right  of  lien  of  an 
innkeeper  depends  upon  the  fact  that  the  goods  came  into  his  posses- 
sion, in  his  character  of  innkeeper,  as  belonging  to  a  guest.  Smith  v. 
Dearlove,  6  C.  B.  132.  The  guests  received  in  this  case  were  Mr. 
Martin  Silber  and  his  wife,  and  all  the  goods  received  by  the  innkeeper 
were  received  as  the  goods  of  Mr.  Martin  Silber  and  his  wife.  They 
brought  the  goods  to  the  hotel.  If  Mr.  Martin  Silber  had  stolen  the 
goods,  the  lien,  as  I  have  said,  would  have  attached.  Can  it  be  said 
that  it  is  not  to  attach  because  some  of  the  goods  happen  to  be  the  scn- 
arate  property  of  his  wife,  who  was  received  as  his  wife  with  him  as 
a  guest?  Husband  and  wife  arrive  at  an  hotel  with  luggage;  the  inn- 
keeper has  no  power  of  discriminating  what  mav  be  the  property  of 
the  husband  and  what  may  be  the  property  of  the  wife  ;  he  receives,  and 
is  bound  to  receive  husband  and  wife  with  their  luggage;  the  inn- 
keeper's charges  are  not  paid,  and  I  cannot  see  how  it  can  be  success- 
fully contended  that  the  lien  does  not  attach.  It  would,  in  many  cases, 
be  defeating  the  innkeeper's  lien  and  the  object  for  which  it  was  gi\-en. 
The  plaintiffs  therefore,  fail  as  to  their  claim  against  the  female  de- 


Sec.  2)  BAILOR    AND    BAILEE  97 

fendant,  but  succeed  as  to  her  counter-claim,  and  there  will  be  judg- 
ment for  the  defendant  on  the  claim,  and  for  the  plaintiffs  on  the 
counter-claim.^* 


(C)  Loss  of  Lien 

McFARLAND  v.  WHEELER. 

(Court  for  the  Correction  of  Errors,  New  York,  1841.     26  Wend.  467.) 

Error  from  the  Supreme  Court.  Wheeler  and  others  brought  an 
action  of  replevin  in  the  Washington  Common  Pleas,  against  McFar- 
land,  for  taking  a  quantity  of  boards,  which  they,  as  the  owners  of  a 
saw-mill,  had  sawed  for  one  Vaiighan.     It  was  agreed  they  should 

«4  Contra,  Chiyton  v.  Butterfield,  10  Rich.  (S.  C.)  300  (1S57). 

Husband  and  wife  lodged  with  A.,  credit  being  given  to  the  husband. 
Held,  A.  has  no  lien  upon  wife's  property  under  a  statute  extending  innkeep- 
ers' liens  to  lodging  house  keepers.  Mcllvane  v.  Hilton,  7  Hun  (N.  T.)  594 
(1876).     See  Baker  v.  Stratton,  52  N.  J.  Law,  277,  19  Atl.  661  (1890). 

"The  simple  fact  that  Russell  made  an  agreement  as  to  the  price  to  be 
paid  by  him  by  the  week,  would  not,  upon  any  principle  of  law  or  reason, 
take  away  his  character  as  a  traveler  and  a  guest.  A  guest  for  a  single 
night  might  make  a  special  contract,  as  to  the  price  to  be  paid  for  his  lodg- 
ing, and  whether  it  were  more  or  less  than  the  usual  price,  it  would  not  af- 
fect his  character  as  a  guest.  The  character  of  guest  does  not  depend  upon 
the  payment  of  any  particular  price,  but  upon  other  facts.  If  an  inhabitant 
of  a  place  makes  a  special  contract  with  an  innkeeper  there,  for  board  at 
his  inn,  be  is  a  boarder,  and  not  a  traveler  or  a  guest,  in  the  sense  of  the 
law.  But  Russell  was  a  traveler,  and  put  up  at  the  defendant's  inn  as  a 
guest,  was  received  by  the  defendants  as  a  guest,  and  was,  in  the  sense  of 
the  law,  and  in  every  sense,  a  guest."  Berkshire  Woollen  Co.  v.  Proctor,  7 
Cush.  (Mass.)  417,  424  (1851). 

"The  distinction  between  a  guest  and  a  boarder  seems  to  be  this:  'The 
guest  conies  without  any  bargain  for  time,  remains  without  one,  and  may  go 
when  be  pleases,  paying  only  for  the  actual  entertainment  which  he  receives ; 
and  it  is  not  enough  to  make  him  a  boarder,  and  not  a  guest,  that  he  has 
staid  a  long  time  in  the  inn  in  this  way.'  1  Par.sons,  Contracts.  628;  Story 
on  Bailments,  §  477."     Shoecraft  v.  Bailey,  25  Iowa,  553,  555  (1868). 

"The  question  is  whether  it  is  the  law  that,  if  a  person  goes  to  an  inn  in 
the  character  of  a  traveler,  that  person  retains  the  same  character  for  any 
time  however  long.  »  *  *  The  question  whether  a  person  has  ceased  to 
be  a  traveler  seems  to  me  ■*  *  *  to  be  a  question  of  fact,  and  mere 
length  of  residence  is  not  decisive  of  the  matter,  because  there  may  be  cir- 
cunistanoes  which  shew  that  the  length  of  the  stay  does  not  prevent  tlie 
guest  being  a  traveler,  as,  for  instance,  where  it  arises  from  illness ;  but  it  is 
wrong  to  say  that  length  of  time  is  not  one  of  the  circumstances  to  be  taken 
into  account  in  determining  whether  the  guest  has  retained  his  character  of 
traveler."    T.aniond  v.  Richard,  [1S97]  1  Q.  B.  D.  541,  546. 

See,  also.  Thompson  v.  Lacy,  3  B.  &  Aid.  283  (1820) ;  Lusk  v.  Belote,  22 
Minn.  46S  (187(1) :   Hancock  v.  Rand,  94  N.  Y.  1,  46  Am.  Rep.  112  (1S83). 

A  traveler  brings  his  horse  to  an  inn  and  leaves  it  there.  Held,  he  there- 
by becomes  a  guest.  York  v.  Clreeiuuigh,  2  Ld.  Ray.  866  (1702) :  Mason  v. 
Thompson,  9  Tick.  (Mass.)  2S0,  20  Am.  Dec.  471  (1S;10).  Compare  Smith  v. 
Dearlove,  6  C.  B.  132  (1848) :  Grinuell  v.  Cook,  3  Hill  (N.  Y.)  485,  38  Am. 
Dec.  6G3  (1S42) ;  McDaniels  v.  Robinson,  26  Vt.  316, '62  Am.  Dec.  574  (1854). 
Big.Pers.Prop. — 7 


98  rossEssoHY  interests  in  chattels  (Ch.  3 

receive  $2.25  per  one  hundred  pieces,  and  have  a  Hen  upon  the  same 
until  paid.  It  was  further  agreed  tliat  Vaughan  might  pile  the 
boards  on  the  bank  of  the  Champlain  Canal,  about  half  a  mile  from 
the  mill-yard — the  plaintiffs'  lien  for  sawing,  however,  to  remain  the 
same  as  if  the  lumber  was  piled  in  the  mill-yard — the  expenses  of  the 
removal  to  be  borne  by  Vaughan,  and  the  ground  for  piling  to  be  pro- 
cured by  him.  The  plaintiffs  sawed  about  fourteen  thousand  pieces. 
Vaughan  took  away  a  boat  load  of  the  lumber  from  the  canal  bank, 
with  the  assent  of  the  plaintiffs,  and  afterwards  took  away  two  other 
boat  loads  without  their  knowledge  or  assent.  A  deputy  of  the  de- 
fendant, who  was  Sheriff  of  the  County  of  Washington,  levied  upon 
the  lumber  remaining  upon  the  bank  of  the  canal,  in  quantity  about 
8,000  pieces,  by  virtue  of  an  execution  against  Vaughan,  and  adver- 
tised it  for  sale.  *  *  *  Jt  was  proved  that  there  was  no  agreement 
that  the  lien  for  sawing  the  lumber  taken  away  should  be  transferred 
to  the  boards  which  remained.     *     *     * 

Senator  Verplanck."^  In  this  case  the  right  of  action  depends 
wholly  upon  the  continuance  of  tlie  lien  on  the  replevied  boards  for 
the  price  of  sawing  them ;  and  if  that  right  had  ceased  at  the  time 
of  the  levy,  there  is  an  end  of  all  the  other  questions  which  have  been 
raised  in  this  unusually  protracted  litigation.  I  think  that  the  Su- 
preme Court  erred  in  holding  that  the  special  agreement,  continuing' 
the  lien  upon  the  boards  after  their  delivery  to  the  owner,  gave  the 
plaintiffs  below  such  a  special  property  in  them  as  to  authorize  an 
action  to  be  brought  by  them  against  the  sheriff.     *     *     * 

The  very  definition  of  the  word  lien,  as  "the  right  to  retain,"  indi- 
cates that  it  must  cease  when  the  possession  is  relinquished.  This  prin- 
ciple, so  clearly  founded  in  reason  and  so  congruous  to  public  utility 
and  the  convenience  of  trade,  is  supported  by  the  uniform  testimony 
of  the  decisions.     *     *     * 

Now,  in  this  case,  there  was  a  voluntary  relinquishment  of  posses- 
sion by  allowing  the  owner  to  take  the  sawed  boards  from  the  mill- 
yard  to  a  landing  place  on  the  canal,  procured  by  himself,  and  which, 
in  the  charge,  is  called  his  "landing  ground."  The  boards  appear  to 
have  been  so  much  under  his  control  there,  that  he  not  only  remov^ed 
one  boat  load  with  tlie  plaintiffs'  consent,  but  two  more  without  their 
knowledge.  It  was,  indeed,  expressly  stipulated,  that  the  lien  of 
Wheeler  &  Co.,  for  sawing,  "should  remain  the  same  as  if  the  lum- 
ber were  piled  up  in  the  mill-yard."  This  stipulation  was  considered 
by  the  late  Chief  Justice  as  equivalent  to  a  continuance  of  possession. 
"Their  rights  were  the  same,"  he  says,  "as  if  they  paid  the  rent  of  tlie 
ground  on  which  the  boards  were  piled,  or  as  if  they  were  piled  up 

«5  The  statement  of  facts  is  abridged,  parts  of  the  opinion  of  Verplanck. 
Senator,  and  the  opinions  of  Paige,  Nicholas,  Lee,  Root,  and  Dickinson,  Sen- 
ators, and  Bradish,  President  of  the  Senate,  are  omitted. 


I 


Sec.  2)  BAILOR    AND    BAILEE  99 

in  their  mill-yard."  I  cannot  give  such  an  effect  to  this  agreement  as 
against  any  third  party.  Special  stipulation  may  enlarge  the  lien  so 
as  to  secure  other  legal  demands  besides  those  to  which  the  law  itself 
gives  that  privilege ;  but  it  is  in  contradiction  to  the  principle  and  pol- 
icy of  the  law  to  allow  any  such  agreement  to  extend  the  right  itself 
beyond  possession.  It  would  be  recognizing  a  right  to  retain  after  the 
property  had  ceased  to  be  retained.  *  *  *  jf  the  boards  had  been 
placed  under  the  control  or  upon  the  lands  of  some  third  person,  for 
the  convenience  of  both  parties,  but  under  the  authority  of  the  owners 
of  the  saw-mill  claiming  the  lien,  or  if  tlie  place  of  deposit  had  been 
some  public  wharf  where  the  lumber  was  placed  under  the  control 
of  those  claimants  and  in  tlieir  name,  there  might  be  a  continuance  of 
legal  possession.  But  here  the  real  possession  is  that  of  the  owner  of  the 
boards,  which  is  inconsistent  with  their  being  retained  for  any  charge 
upon  them.  So  plainly  is  any  such  possession  by  the  owner  inconsistent 
with  the  continuance  of  the  right  of  a  lien  or  to  a  pledge,  whether  by 
law  or  contract,  that  it  has  been  held  that  even  the  right  and  exercise 
of  occasional  control  and  possession  by  the  owner  must  terminate  any 

I  1  f*T1  -T"  •I*  •)* 

It  has  been  suggested,  that  the  lien  thus  extended  beyond  posses- 
sion by  express  agreement,  would  operate  as  a  mortgage.  Not  so. 
It  would  only  constitute  it  a  pledge  without  possession.  The  legal 
distinction  between  a  pledge  and  a  mortgage  is  often  overlooked.  It 
is  nowhere  more  precisely  defined  than  in  a  per  curiam  opinion  of 
our  own  court,  delivered  by  Chief  Justice  Kent :  "The  note  came  un- 
der tlie  strict  definition  of  a  pledge.  It  was  delivered  with  a  right  to 
retain  as  security  for  debt.  But  the  legal  property  does  not  pass  as 
it  does  in  case  of  a  mortgage  with  condition  of  defeasance.  It  is, 
therefore,  to  be  distinguished  from  a  mortgage  of  goods,  for  that  is 
a  pledge  to  become  an  absolute  interest,  if  not  redeemed  at  a  fixed 
time.  Delivery  is  essential  to  a  pledge,  but  a  mortgage  of  goods  is, 
in  certain  cases,  valid  without  delivery."  Cortelyou  v.  Lansing,  2 
Caines'  Cas.  202.  We  have  here  no  condition  of  the  property  becom- 
ing absolute  if  this  demand  for  sawing  is  not  paid  at  a  given  time. 
There  was  simply  an  agreement  that  security  of  the  lien  should  con- 
tinue ;  or,  in  other  words,  that  the  boards  should  be  considered  as  a 
specific  security  after  the  possession  was  parted  with.  The  contract 
is  valid  between  the  parties,  and  might,  I  presume  be  enforced  in 
equity,  or  perhaps  at  law,  under  certain  circumstances.  But  it  is  a 
contract  the  parties  have  no  right  to  make,  so  as  to  control  the  rights 
of  other  persons,  and  it  would  be  in  hostility  to  all  the  definitions,  rea- 
sonings and  decisions  on  this  head  to  regard  tlie  lien  as  still  valid 
against  creditors  or  purchasers  in  good  faith. 

Every  reason  of  policy  that  has  ever  induced  courts  to  watch  with 
suspicion  sales  and  mortgages  unaccompanied  by  possession,  and  to 
presume  them  fraudulent  when  secret  and  known  only  to  the  parties, 


100  POSSESSORY    INTKRESTS   IN  CHATTELS  (Ch.  3 

applies  with  yet  greater  force  to  a  secret  continuance  of  lien  after 
tlie  owner  receives  voluntary  possession.  It  opens  a  wide  door  to  fraud 
and  abuse.  If  this  action  can  be  maintained  against  a  sheriff,  who 
levied  upon  the  boards,  others  may  also  be  obtained  against  those  per- 
sons who  have  bought  the  boards  mentioned  in  evidence  as  having  been 
taken  off%y  the  owner  without  the  consent  of  the  agent  of  the  saw- 
mill. Thus,  the  indulgence  given  to  the  owner,  and  the  private  agree- 
ment between  him  and  those  who  claim  the  lien,  would  work  gross 
hardship  to  fair  purchasers,  acting  upon  the  apparent  indication  of 
a  perfect  right  of  property  held  out  by  this  stipulation.     *     *     * 

On  the  question  being  put.  Shall  this  judgment  be  reversed?  all  the 
members  of  the  court  present  at  the  argument  of  the  cause,  except  the 
Chancellor  and  Senator  Paige,  voted  in  the  affirmative;  the  Chan- 
cellor and  Senator  Paige  voted  in  the  negative. 

Whereupon  the  judgment  of  the  Supreme  Court  was  reversed." 


RUGGLES  V.  WALKER. 

(Supreme  Court  of  Vermont,  1861.    34  Vt  4CS.) 

[One  Whipple  had  a  lien  on  starch  of  the  defendant.  The  plaintiff 
advanced  to  Whipple  the  amount  of  his  lien.  Whipple  delivered  the 
starch  to  the  plaintiff  who  notified  the  defendant  that  he  had  purchased 
Whipple's  claim.  The  defendant  took  the  starch  from  the  plaintiff 
without  making  payment.  Plaintiff  brought  trespass  and  ti'over.  Judg- 
ment below  was  for  the  plaintiff  and  defendant  excepted.] 

Kellogg,  J."'  *  *  *  jj_  f^g  more  important  question  is, 
whether  Whipple's  lien  was  of  such  a  character  as  would  enable  him 
to  transfer  it  with  the  property  by  assignment  to  the  plaintiff.  The 
rule,  as  generally  stated  by  text  writers,  is  that  the  right  of  lien  is 

88  Ace.:  Lembeck  v.  Jarvls  Terminal  Cold  Storage  Co.,  68  N.  J.  Eq.  492, 
59  Atl.  300  (1004),  affirmed  09  N.  J.  Kq.  781,  63  Atl.  257,  7  Ann.  Cas.  !IG0  (1900). 

The  A.  R.  R.  carried  coal  for  B. ;  at  its  destination  it  was  shoveled  into 
bins  by  B. ;  the  bins  were  on  A.'s  land,  but  one  had  broken,  and  the  coal  ran 
over  on  B.'s  land.  B.  carted  it  from  the  bins  as  he  sold  it.  Held,  A.  ha.s  a 
lien  on  the  coal  not  carted  away.  Lane  v.  Old  Colony  &  F.  R.  Co.,  14  Gray 
(Mass.)  143  (1860).  Compare  Reineman  &  Co.  v.  Covington,  C.  &  B.  R.  Co.,  51 
Iowa,  338,  1  N.  W.  619  (1879) ;  Rowland  v.  Dolby,  100  Md.  272,  59  Atl.  GOG, 
3  Ann.  Cas.  643  (1905). 

A.  had  possession  of  B.'s  horse  under  a  lien  for  work  done  on  the  horse 
for  C,  to  whom  B.  had  intrusted  it.  D.  promised  A.  by  parol  to  be  resiwn- 
sible  for  the  claim  against  C,  and  A.  agreed  to  surrender  the  horse  to  B. 
A.  later  refused  to  do  so.  B.  brought  replevin.  Held,  D.'s  promise,  being 
void  under  the  statute  of  frauds,  is  no  consideration  for  A.'s  promise  to  give 
up  the  horse,  and  B.  cannot  replevy.  Panforth  v.  Pratt,  42  Me.  50  (1856). 
See  Benson  v.  Mole,  9  I'hila.  (Pa.)  G6  (1872). 

8  7  I'art  of  the  opinion  is  omitted. 


I.    jl 


Sec.  2)  BAILOR    AND    BAILEE  101 

a  personal  right  which  can  not  be  parted  with,  and  that  a  person  who 
has  a  lien  can  not  sell  his  right  to  another,  nor  can  be  transfer  the 
property  over  which  the  lien  extends,  without  losing  his  right,  unless 
the  property  has  been  pledged  to  secure  the  payment  of  money  advanc- 
ed with  an  express  or  implied  power  of  sale.  2  Kent's  Comm.  642 ; 
Addison  on  Contracts,  1155.  It  is  said  by  Duller,  J.,  in  Lickbarrow  v. 
Mason,  6  East,  27,  in  notis,  that  he  who  has  a  lien  only  on  goods  has 
no  right  to  sell  or  dispose  of  them,  but  only  to  retain  them  until  the 
original  price  be  paid;  and  the  same  profound  jurist  says,  in  Daubigny 
V.  Duval,  5  D.  &  E.  604,  that  "a  lien  is  a  personal  right,  and  can  not 
be  transferred  to  another."  *  *  *  The  distinction  is  this,  that  a 
lien,  when  given  by  law,  is  merely  a  right  to  retain  or  keep  possession 
of  property  until  payment;  but  a  pledge  of  property  by  way  of  se- 
curity for  a  debt  is  a  lien  with  a  power  of  sale  superadded.  In  Lovett 
V.  Brown,  40  N.  H.  511,  it  is  held  that  a  mechanic's  or  manufacturer's 
lien  is  neither  a  jus  ad  rem,  nor  a  jus  in  re,  but  a  simple  right  of  re- 
tainer personal  to  the  part)'  in  whom  it  exists,  and  not  assignable  or 
attachable  "*  as  personal  property,  or  a  chose  in  action,  of  the  per- 
son entitled  to  it.  The  lien  in  such  cases  is  a  mere  passive  lien  or 
right  of  retainer,  and,  although  the  retention  of  the  property  may  be 
attended  with  expense,  and  may  be  of  no  benefit  to  either  party,  these 
considerations  will  not  change  the  nature  of  the  lien  or  the  rights  con- 
ferred by  it.  It  is  of  the  same  nature  as  the  lien  of  an  attorney  or 
solicitor  on  papers  for  his  costs,  which  is  a  mere  personal  right,  and 
one  that  can  not  be  actively  enforced,  as  the  papers  can  not  be  sold  or 
transferred,  but  can  only  he  held  as  a  security.  Bozon  v.  Bolland,  4  M\l. 
&  Cr.  354  (18  Eng.  Ch'..  S.  C).  Property  held  by  a  party  in  right  of 
a  lien  can  not  form  the  subject  matter  of  a  sale  by,  or  be  taken  on 
execution  against,  the  lien  holder.  Legg  v.  Evans,  6  M.  &  W.  36;  Hol- 
ly v.  Huggeford,  ubi  supra;  Kittredge  v.  Sumner,  11  Pick.  (Mass.)  50. 
We  regard  it  as  well  established  by  the  authorities  referred  to  that 
Whipple's  right  of  lien  was,  while  the  property  remained  in  his  pos- 
session, a  personal  privilege  which  he  could  not  sell  or  transfer  ex- 
cept with  the  consent  of  the  defendant,  who  was  the  general  owner  of 
the  property  ;  that  possession  was  essential  not  only  to  the  creation,  but 
also  to  the  continuance,  of  the  lien ;  and  that  when  Whipple  parted 
with  his  dominion  over  the  property,  and  suffered  its  locality  to  be 
changed,  so  as  to  put  it  out  of  his  power  to  surrender  it  on  demand 
to  the  general  owner,  on  payment  or  tender  of  the  price  of  manufac- 
turing it,  his  right  of  lien  was  determined  and  forfeited.  The  transfer 
by  Whipple  of  his  right  of  lien  to  the  plaintiff  was  consequently  in- 
operative, and  passed  no  right  or  interest  in  the  property  to  the  plain- 
tiff.    A  different  view  of  the  law  of  the  case  having  been  taken  by 

«8Acc.:    HoUy  V.  Huggeford,  8  Pick.  (Mass.)  73,  19  Am.   Dec.  303  (1S29), 
*nte,  p.  22. 


102  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

the  county  court  in  the  instructions  given  to  the  jury,  the  judgment 
of  that  court  in  favor  of  the  plaintiff  is  reversed,  and  a  new  trial 
granted."' 


WESTERN  TRANSP.  CO.  v.  BARBER. 

(Court  of  Appeals  of  New  York,  1874.     56  N.  T.  544.) 

[For  Statement  of  facts  and  portion  of  opinion,  see  ante,  p.  43.] 
Grover,  J.  The  first  inquiry  is  whether  the  plaintiff  lost  its  lien 
for  freight  upon  the  oats  by  failing  to  deliver  them  to  Hoyt  &  Co. 
pursuant  to  the  bill  of  lading,  and  warehousing  them  with  the  defend- 
ant in  its  own  name.  This  will,  I  think,  depend  upon  the  question 
whether  Hoyt  &  Co.,  the  consignees,  were  in  default  in  not  receiving 
the  oats  in  the  time  they  were  required  so  to  do  by  the  bill  of  lading 
so  as  to  confer  upon  the  carrier  the  right  to  remove  them  from  its  boat 
by  placing  them  elsewhere.  It  is  said  that  a  lien  can  exist  only  while 
the  lienor  retains  the  possession  of  the  property  subject  thereto.  This 
is  the  undoubted  rule  applicable  to  the  rights  of  the  lienor  and  general 
owner.  If  the  former  delivers  possession  of  the  property  to  the 
latter  he  thereby  waives  his  lien.  McFarland  v.  Wheeler,  26  Wend. 
467.  But  in  this  case  the  oats  were  not  so  delivered,  but  placed  by  the 
plaintiff,  in  its  own  name,  in  the  warehouse  of  the  defendant;  and  the 
question  is,  whether  this  discharged  the  Jien,  assuming  that  by  the 
default  of  the  consignees  in  receiving  them  the  plaintiff  had  the  right 
to  remove  them  from  its  boat  by  placing  them  elsewhere.  *  *  * 
I  am  unable  to  see  any  but  the  most  technical  reason  for  holding,  that 
under  such  circumstances  the  lien  would  be  lost.  These  reasons  are 
that  the  carrier  has  parted  with  the  actual  possession,  which  is  nec- 
essary to  uphold  the  lien;  and,  second,  that  it  is,  substantially,  a  de- 
livery to  the  owner.  As  to  the  first,  I  concur  with  the  observation  of 
Senator  Verplanck,  in  his  opinion  in  McFarland  v.  Wheeler,  supra.  He 
says,  "it  is  true  that  the  possession  thus  essential  to  the  lien  need  not 
always  be  the  direct  and  actual  possession  of  the  party;  that  of  his 
agent  or  servant,  or  the  keeper  of  a  warehouse  acting  under  his  au- 
thority is  also  his  own,  for  this  and  many  other  legal  purposes."    The 

eoAcc.:  Glascock  v.  I.emp,  26  Ind.  App.  175.  .59  X.  E.  .342  (1901).  Contra: 
Gardner  v.  I^e  Fevre,  ISO  Mich.  219,  146  N.  W.  653,  Ann.  Cas.  1916A,  618 
(1914) :    Nash  v.  Mosher,  19  Weud.  (X.  Y.)  431  (1838). 

A.  was  B.'s  servant  in  charge  of  his  horse.  A.  paid  C.'s  charges  for  shoe- 
ing the  horse.  Held,  A.  has  a  lien  on  the  horse  for  these  charges.  Hoover 
V.  Epler,  52  Pa.  522  (1866). 

A.  shipi>ed  goods  to  B. ;  they  were  attached  en  route  by  C.  on  an  execu- 
tion against  B.,  C.  paying  the  carrier  his  freight  charges.  A.  stopped  the 
goods  in  transit  because  of  B.'s  insolvency.  Held,  A.  cannot  replevy  from  C. 
without  paying  the  freight  charges.  Eucker  v.  Donovan,  13  Kan.  251,  19  Am. 
Rep.  84  (1874),  Compare  Leag  v.  Evans,  6  JI.  &  W.  36  (1840) ;  Keep  Mfg.  Co. 
V.  Moore,  11  Eea  (79  Tenn.)  285  (1SS3). 


'Sec.  2)  BAILOR   AND   BAILEE  103 

senator  evidently  refers  to  a  warehouse  belonging  to  another  than  the 
carrier,  the  keeper  of  which  acts  under  the  authority  of  the  carrier 
in  respect  to  the  particular  goods  deposited.  As  to  these  the  keeper 
acts  under  the  authority  of  the  carrier,  and  his  possession  may  be  re- 
garded as  that  of  the  carrier,  for  the  purpose  of  preserving  the  lien. 
The  delivery  for  the  owner  is  subject  to  the  condition  of  his  paying  the 
freight;  and  he  cannot,  otherwise,  obtain  actual  possession  of  the 
goods.  It  is  said  in  some  of  the  cases,  that  a  lienor  has  no  right  to  sub- 
ject the  goods  to  any  additional  lien  in  favor  of  another;  that  by  so 
doing  he  would  be  liable  for  a  conversion  of  the  goods.  This,  in  the 
cases  where  the  rule  was  applied,  is  correct,  but  not  so  as  to  a  car- 
rier who  has  been  obliged  to  deposit  the  goods  in  a  warehouse  because 
of  a  refusal  of  the  owner  to  receive  them.  Then  the  creation  of  a 
further  lien  for  the  warehouse  charges  is  made  necessary  by  the  act 
of  the  owner ;  and  it  is  immaterial  to  him  whether  the  carrier  creates 
this  additional  lien  in  his  own  favor  by  depositing  them  in  a  ware- 
house of  his  own,  if  he  has  one,  or  in  behalf  of  another  in  whose  ware- 
house he  makes  the  deposit.  In  the  present  case  the  plaintiff  did 
not  deposit  the  oats  for  the  owner,  but  in  its  own  name,  as  its  prop- 
erty. Such  a  deposit,  if  made  in  consequence  of  the  default  of  the 
owner  in  receiving,  would  no  more  discharge  the  lien  than  if  made 
by  the  plaintifT  in  a  warehouse  of  its  own.  The  keeper,  as  in  the  case 
of  a  deposit  for  the  owner  subject  to  the  lien,  had  possession  by  au- 
thority of  the  carrier ;  and  his  possession  is  to  be  deemed  that  of 
the  carrier,  for  the  purpose  of  preserving  the  lien.'" 

The  question,  therefore,  is  whether  the  owner  was  so  far  in  de- 
fault in  receiving  the  oats  as  to  confer  upon  the  plaintiff  the  right  to 
abandon  further  attempts  to  deliver  to  him,  and  obtain  the  immedi- 
ate use  of  its  boat  by  depositing  them  elsewhere.  If  he  was,  the  de- 
posit was  rightful,  and  the  lien  preserved.  If  he  was  not,  it  was  wrong- 
ful and  in  violation  of  the  rights  of  the  owner,  and  a  conversion  of 
the  oats  by  the  plaintiff,  which,  it  is  clear,  destroyed  the  lien.     *     *     * 

[The  court  held  that  the  delivery  to  the  warehouseman  was  under 
the  circumstances  of  the  case  a  violation  of  the  rights  of  the  con- 
signee.   The  final  question  discussed  by  the  court  is  given  ante,  p.  43.] 

'OA.  had  a  lien  on  B.'s  trunk.  He  forwarded  it  to  B.  by  a  common  car- 
rier C.  O.  D.  B.  paid  the  freislit.  but  not  the  amount  of  the  lien.  Held,  he 
is  not  entitled  to  the  trunk.  Jaquith  v.  American  Expre.ss  Co.,  60  N.  H.  61 
(ISSO). 

A.  had  a  lien  on  B.'s  horse:  he  sued  B.  for  the  debt,  had  the  .sheriff 
attach  the  horse,  and  himself  bid  it  in  at  the  sale.  C.  had  acquired  title  to 
the  horse  as  B.'s  assignee  in  bankruptcy  while  A.  was  holding  it  under  his 
lien.  Held,  the  attachment  destroyed  the  lien,  since  the  iwssession  of  the 
horse  was  thereby  put  in  the  sheriff.  Jacobs  v.  Latour,  5  Biug.  130  (1828). 
Contra,  on  the  ground  that  the  officer  has  possession  as  the  agent  of  the 
lienor.  I>ambert  v.  Mcklass,  45  W.  \i\.  .527,  31  S.  E.  951,  44  L.  R.  A.  501.  72 
Am.  St.  Hep.  S2S  (1S9S).  Compare  \Yingard  v.  Banning,  39  Cal.  543  (1870); 
Palmer  v.  Tucker,  45  Me.  316  (1858). 


lOi  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

WELSH  V.  BARNES. 

(Supreme  Court  of  North  Dakota,  1S95.    5  N.  D.  277,  65  N.  W.  675.) 

Corliss,  J.'*  This  case  presents  a  contest  between  a  stable  keeper 
claiming  a  lien  on  a  mare  for  the  feeding  and  care  of  her,  and  an 
attaching  creditor,  whose  attachment  was  levied  on  the  mare  while 
she  was  temporarily  in  the  p)ossession  of  the  owner  thereof.  The 
plaintiff,  who  was  the  stable  keeper,  brought  replevin  against  the 
defendant,  who  was  the  sheriff  by  whom  the  levy  was  made.  The 
defendant  sought  to  justify  under  the  writ.  At  the  time  he  made  the 
levy  there  was  owing  the  plaintiff,  for  feeding  and  caring  for  this 
mare,  something  over  $50.  Plaintiff  claimed  a  right  to  the  possession 
of  the  mare  under  the  statutory  lien  given  him  by  section  5486,  Comp. 
Laws,  for  the  amount  of  this  bill.  The  contention  of  defendant  is 
that,  as  to  the  creditors  of  the  owner  of  the  mare,  the  lien  was  lost 
by  allowing  the  owner  to  take  the  mare  temporarily  from  the  stable 
to  drive.  It  is  undisputed  that  he  had  not  taken  her  permanently 
from  the  possession  of  the  plaintiff,  nor  did  any  one  so  understand. 
The  mare  was,  when  seized  by  defendant,  simply  in  his  possession 
for  a  short  time,  to  drive  her  about  as  is  customary  in  such  cases ; 
and  it  was  his  purpose  to  return  her  to  the  stable  of  plaintiff,  as  he  had 
done  before.  The  statute  giving  the  lien  provides  as  follows :  "Any 
farmer,  ranchman  or  herder  of  cattle,  tavern  keeper,  or  livery  stable 
keeper,  to  whom  any  horses,  mules,  cattle,  or  sheep  shall  be  entrust- 
ed for  the  purpose  of  feeding,  herding,  pasturing  or  ranching,  shall 
have  a  lien  upon  said  horses,  mules,  cattle  or  sheep,  for  the  amount 
that  may  be  due  for  such  herding,  feeding,  pasturing  or  ranching,  and 
shall  be  authorized  to  retain  possession  of  such  horses,  mules,  cattle  or 
sheep  until  the  said  amount  is  paid ;  provided  that  these  provisions 
shall  not  be  construed  to  apply  to  stolen  stock."  Comp.  Laws,  §  5486. 
It  is  obvious  that  this  statute  must  be  construed  in  the  light  of  the 
usages  of  business,  and  the  customs  of  people  who  place  horses  in 
stables  to  be  cared  for  by  the  proprietor  of  such  stables.  It  is  always 
understood  that  the  owner  will,  from  time  to  time,  take  temporary 
possession  of  the  horse,  returning  it  to  the  stable  after  his  temporary 
use  of  the  animal  has  ceased.  If  the  owner,  with  the  consent  of  the 
stable  keeper,  removes  the  horse  permanently  from  his  possession,  the 
lien  is  gone.  Such  was  the  case  of  Ferriss  v.  Schreiner,  43  Minn. 
148,  44  N.  W.  1083.  If  the  circumstances  of  the  case  warrant  the  in- 
ference that  the  owner  in  the  case  cited  had  come  to  take  his  horse 
for  good,  then  if  the  plaintiff  had  assented  to  this  his  lien  would  have 
been  gone.     But  the  mare,  in  the  case  at  bar,  when  she  was  taken  out 

Ti  Part  of  the  opinion  is  omitted. 


Sec.  2)  BAILOR    AND    BAILKE  105 

for  a  drive,  was  being  boarded  at  plaintiff's  stable  by  the  month,  and 
it  was  not  the  intention  of  either  party  to  terminate  this  arrangement 
at  the  time  she  was  attached. 

Under  the  facts  of  the  case  at  bar,  it  is  obvious  that  the  plaintiff's 
lien  was  not  lost  or  impaired  at  the  time  the  defendant,  as  sheriff, 
seized  the  mare  under  attachment  against  the  owner.  The  authori- 
ties are  unanimous  on  this  point.  Walls  v.  Long,  2  Ind.  App.  202, 
28  N.  E.  101 ;  Caldwell  v.  Tutt,  10  Lea  (Tenn.)  258,  43  Am.  Rep. 
307 ;  State  v.  Shevlin,  23  Mo.  App.  598 ;  Young  v.  Kimball,  23  Pa. 
193.  There  was  not  such  a  loss  of  possession  as  would  defeat  the 
lien  as  to  third  persons.  Caldwell  v.  Tutt,  10  Lea  (Tenn.)  258,  43  Am. 
Rep.  307 ;  State  v.  Shevlin,  23  Mo.  App.  598.  Said  the  court  in  this 
last  case:  "In  the  view  we  take  of  the  meaning  of  the  statute,  the 
lien  thereby  conferred  is  not  dependent  upon  any  actual,  physical  cus- 
tody by  the  stable  keeper  at  every  moment  of  time.  We  think  that  the 
lien  conferred  by  the  statute  subsists,  even  as  against  third  persons 
without  notice,  while  the  horse  is  boarded  in  the  stable  of  the  lienor, 
although  it  may,  with  his  consent,  be  used  during  the  day  by  the  own- 
er in  his  business.  To  hold  otherwise  would  be  to  construe  the  statute 
so  as  to  deprive  stable  keepers  of  the  protection  which  the  legislature 
probably  intended  to  give  them ;  since,  as  is  well  known,  in  most  cases 
where  horses  are  boarded  the  owner  is  allowed  to  use  them  in  his 
business  during  the  day.  This  being  so,  the  statute  could  not  have 
intended  to  allow  the  owner  to  destroy  the  lien  of  the  stable  keeper, 
while  having  the  possession  of  the  horse  on  the  street  during  the  day, 
by  selling  or  mortgaging  it  to  a  stranger  without  notice  of  the  lien. 
On  the  contrary,  we  are  of  opinion  that  every  person  is  bound  so  far 
to  take  notice  of  the  statute  that,  when  he  is  about  to  become  the 
purchaser  or  mortgagee  of  a  horse,  found  upon  the  street  in  the  cus- 
tody of  its  owner,  it  is  incumbent  upon  him  to  make  inquiry  as  to  the 
place  where  the  horse  is  boarded,  and  whether  anything  is  due  for  its 
keeping.  There  is  no  greater  hardship  in  this  rule  than  there  is  in 
the  general  rule  in  respect  of  purchases  of  personal  property, — that 
the  purchaser  gets  no  better  title  than  the  seller  has."  *  *  *  We 
have  decided  this  case  upon  the  theory  that  neither  the  sheriff  nor  the 
attaching  creditor  knew  of  plaintiff's  lien.  We  agree  with  the  court 
in  State  v.  Shevlin,  supra,  that  ignorance  of  the  lien  does  not  give  the 
creditor  any  right  to  insist  that  it  does  not  exist  as  to  him.     *     *     * 

The  judgment  is  affirmed.'^ 

'2  Ace,  as  to  an  innkeeper's  lien,  Allen  v.  Smith,  12  C.  B.  N.  S.  638  (1862). 

A  livery  stable  keeper's  lien  has  been  held  good  on  facts  similar  to  the 
main  case  as  against:  The  owner,  who  had  rented  the  horse  to  the  one 
against  whom  the  lien  was  asserted,  Walls  v.  Long,  2  Ind.  App.  202,  28  X.  E. 
101  (1891) ;  a  mortgagee  for  a  'present  loan,  State  v.  SheTlln,  23  Mo.  App. 
598  (1S86) :  an  attaching  creditor,  Caldwell  v.  Tutt,  10  I>ea  (78  Tenn.)  258,  43 
Am.  Uep.  307  (1S82).  Contra,  as  against:  A  purchaser  for  value  in  good 
faith,  Fishell  v.  Morris,  57  Conn.  547,  18  Atl.  717,  6  L.  R.  A.  82  (18S9) ;  Vinal 


lOG  POSSESSORY  INTERESTS  IN  CHATTELS  (Ch.  3 

SEEBAUM  V.  HANDY. 
(Supreme  Court  of  Ohio,  1SS9.    46  Ohio  St.  560,  22  N.  E.  869.) 

[Plaintiff  was  a  livery  stable  keeper  in  Cincinnati;  the  owner  of 
the  horse  in  question  lived  out  of  the  city ;  he  drove  in  at  irregular 
intervals  and  whenever  he  did  so  stabled  the  horse  with  the  plaintiff; 
sometimes  leaving  it  there  for  periods  varj-ing  from  two  days  to  two 
months.  The  plaintif?  last  had  the  horse  in  his  possession  on  No- 
vember 12,  1884.  On  November  15,  1884,  the  owner  of  the  horse  was 
killed,  the  plaintiff's  bill  for  fifteen  months  being  unpaid.  Subse- 
cjuently  the  plaintiff  replevied  the  horse  from  the  next  of  kin  under 
a  claim  of  lien.    Judgment  was  for  defendant  and  plaintiff  excepted.] 

MiNSHALL,  C.  J."  Whether  the  instructions  of  the  court  to  the 
jury  stated  the  law  applicable  to  the  case  made  by  the  tendency  of 
the  proof,  depends  upon  the  nature  and  character  of  the  lien  given 
by  sections  3212  and  3213,  Rev.  Stats.,  to  a  person  who  furnishes 
food  and  care  for  any  "horse"  by  virtue  of  an  agreement  with  the 
owner,  to  secure  the  payment  of  tlie  same. 

These  sections  are  as  follows : 

"Sec.  3212.  A  person  who  feeds  or  furnishes  food  and  care  for 
any  horse,  mare,  foal,  filly,  gelding,  mule,  or  ass,  by  virtue  of  any  con- 
tract or  agreement  with  the  owner  thereof,  shall  have  a  lien  therefor, 
to  secure  the  payment  of  the  same,  upon  such  animal."     *     *     * 

The  right  to  sell  the  animal  upon  notice  and  apply  the  proceeds  to 
satisfying  the  lien,  does  not  affect  its  classification  with  similar  com- 
mon law  liens;  it  only  gives  a  plain  and  simple  remedy  for  enforcing 
the  lien. 

The  evidence  tended  to  show,  and  the  charge  of  the  court  was  ap- 
plicable to,  a  case  where  the  owner  of  a  horse  temporarily  leaves  it 
with  the  owner  of  a  feed-stable  to  be  fed  and  cared  for ;  there  is  no 
definite  arrangement  as  to  time ;  it  may  be  for  less  or  more  than  a 
day ;  this  depends  upon  the  convenience  of  the  owner  who  resides 
out  of  the  city ;  when  he  wishes  to  return  home,  the  horse  is  delivered 
to  him,  and  the  feed  and  care  is  charged  to  him  in  an  account  by  the 
keeper.  There  is  no  express  agreement  at  any  time  that  the  horse  is 
to  be  returned.  Now  how,  under  these  circumstances,  it  can  be  in- 
ferred as  the  court  charged  the  jury,  that  there  is  an  implied  contract 
on  the  part  of  the  owner  to  return  the  horse,  we  are  unable  to  see.  The 
owner  is,  for  the  time,  simplya  customer  of  this  particular  feed-stable. 
The  keeper  may  expect  that  when  the  owner  again  comes  to  the  city 
he  will  again  patronize  him  by  sending  his  horse  to  his  stable.     But 

V.  Spofford.  139  Mass.  126,  29  N.  E.  2S8  (1SS5) ;    an  attaching  creditor,  Crab- 
tree  V.  GrltTith,  22  V.  C.  Q.  B.  573  (1863),  contract  lien. 

Compare  Papineau  v.  Wentworth,  136  Mass.  5-43  (18S4), 

7  3  Part  of  the  opinion  is  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  107 

when  this  may  be,  he  can  neither  rightfully  demand  to  know,  or  expect 
to  be  informed.  How  would  the  owner,  as  a  matter  of  law,  violate 
any  agreement  for  which  damages  could  be  recovered,  if  he  should, 
in  the  meantime,  conclude  to  change  his  patronage  and  never  return  the 
horse.  If  it  were  otherwise  then  it  might  be  inferred  that  every  cus- 
tomer of  a  store  is  under  an  implied  contract  to  continue  to  deal  with 
it.  If  he  were  in  debt  for  goods  previously  sold,  he  might  be  under  a 
moral  obligation  not  to  withdraw  his  custom  until  he  had  discharged 
what  he  owed,  but  there  would  be  no  legal  obligation  to  that  effect, 
arising  from  the  circumstances. 

The  lien  provided  by  this  statute  does  not  arise  upon  contract. 
True,  the  feed  must  be  furnished  under  an  agreement  with  the  own- 
er, but  where  this  has  been  done  the  statute  creates  the  lien  in  favor 
of  the  party  furnishing  it,  irrespective  of  any  agreement  therefor 
to  that  effect.  The  lien  given  is  a  right  to  retain  the  property,  that 
is  its  possession,  as  a  security  for  the  debt,  and  if  this  right  is  not  in- 
sisted on  when  the  horse  is  called  for,  the  owner  can  not  be  said  to 
violate  any  agreement  in  not  afterward  returning  it;  for  he  has  no 
notice  of  an  intention  on  the  part  of  the  keeper  to  assert  a  lien,  when 
the  property  is  voluntarily  delivered  to  him ;  and,  therefore,  any  sup- 
posed agreement  to  return  could  only  relate  to  a  thing  of  which  he 
has  no  notice,  and  which  in  fact,  has  no  existence. 

Therefore,  in  a  case  like  the  one  to  which  the  court  applied  its  charge, 
the  person  furnishing  the  feed  and  bestowing  the  care  must,  if  he 
would  assert  a  lien  on  the  animal  therefor,  do  so  by  retaining  its  pos- 
session when  called  for  by  the  owner,  unless  his  charges  are  paid.  If 
he  do  not,  and  voluntarily  deliver  the  animal  to  the  owner,  he  must 
lie  held  to  have  waived  his  right  to  assert  a  lien  under  the  statute, 
and  to  be  satisfied  with  the  personal  liability  of  the  owner  for  the 
charges.  Such  is  the  rule  in  common  law  liens  based  on  possession, 
and  we  see  no  reason  why  the  rule  should  not  apply  here  as  well  as 
there.  It  is  more  in  harmony  with  the  general  policy  of  our  statutes 
"which  always  strive  to  secure  public  registration  when  possession 
is  not  given  and  retained,  and  which  expressly  provide  for  such  regis- 
tration when  they  in  terms  create  a  lien  not  depending  on  possession." 
Holmes,  J.,  in  Burton  v.  Frye,  139  ]\Iass.  131,  29  N.  E.  476.  See  also 
the  following  cases:  Perkins  v.  Boardman,  14  Gray  (Mass.)  481; 
Papineau  v.  Wentworth,  136  Mass.  543;  Forth  v.  Simpson,  66  Eng. 
Com.  Law,  680.     *     *     * 

Judgment  affirmed.'* 

'*Acc.:   Hartley  v.  Hitchcock,  1  Starkio,  N.  P.  408  (1S16). 

A.  had  a  statutory  warehouseman's  general  lieu  upon  B.'s  goods.  He  per- 
Diitteil  B.  to  remove  them.  Subsequently  B.  nirain  stored  the  goods  with  A. 
Held,  A.  may  hold  for  his  former  charges.  Kaufmau  v.  Leonard,  139  Mich. 
104,  102  N.  W.  632  (1905). 

Loss  of  possession  1  Urough  force  or  fraud  does  not  destroy  the  Hen.  Wal- 
lace V.  Woodgate,  E.  &  M.  193  (1824) ;  Willard  v.  ■UTilnfield,  2  Kan.  App.  53, 
43  I'ac.  314  (1S96) ;    Weber  v.  Whetstone,  53  Neb.  371,  73  N.  W.  695  (1!>97). 


108  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

JONES  V.  PEARLE. 

(Court  of  King's  Bench,  1723.    1  Strange,  557.) 

In  trover  for  three  horses,  the  defendant  pleaded,  that  he  kept  a 
public  inn  at  Glastenbury,  and  that  the  plaintiff  was  a  carrier  and  used 
to  set  up  his  horses  there,  and  £36.  being  due  to  him  for  the  keeping 
the  horses,  which  was  more  than  they  were  worth,  he  detained  and 
sold  them,  prout  ei  bene  licuit:  and  on  demurrer  judgment  was  given 
for  the  plaintiff,  an  innkeeper  having  no  power  to  sell  horses,  except 
within  the  city  of  London.  2  Roll.  Abr.  85 ;  1  Vent.  71 ;  Mo.  876;  Yel. 
67.  And  besides,  when  the  horses  had  been  once  out,  the  power  of 
detaining  them  for  what  was  due  before  did  not  subsist  at  their  coming 
in  again.^' 


BOARDMAN  v.  SILL. 

(Nisi  Prius,  1809.     1  Camp.  410,   note.) 

Trover  for  some  brandy,  which  lay  in  the  defendant's  cellars,  and 
which  when  demanded  he  had  refused  to  deliver  up,  saying  it  was  his 
own  property.  At  this  time  certain  warehouse  rent  was  due  to  the  de- 
fendant on  account  of  the  brandy,  of  which  no  tender  had  been  made 
to  him.  The  Attorney  General  contended  that  the  defendant  had  a  lien 
on  the  brandy  for  the  warehouse  rent,  and  that  till  tliis  was  tendered 
trover  would  not  lie.  But  Lord  EHenborough  considered,  that  as 
the  brandy  had  been  detained  on  a  different  ground,  and  as  no  demand 
of  warehouse  rent  had  been  made,  the  defendant  must  be  taken  to  have 
waived  his  lien,  if  he  had  one,  which  would  admit  of  some  doubt.  The 
plaintiff  had  a  verdict.'' 


SCARFE  V.  MORGAN. 
(Court  of  Exchequer,  1838.    4  Mees.  &  W.  270.) 

Trover  for  a  mare.  Pleas,  first,  not  guilty ;  secondly,  that  the  mare 
was  not  the  property  of  tlie  plaintiff.  At  the  trial  before  Parke,  B.,  at 
the  last  Assizes  for  the  county  of  Suffolk,  it  appeared  that  the  mare  in 
question  had  been  sent  on  more  than  one  occasion  to  the  premises  of 
the  defendant,  who  was  a  farmer,  to  be  covered  by  a  stallion  belonging 
to  him,  and  the  charge  of  lis.  for  the  last  occasion  not  having  been 
paid,  the  defendant  refused  on  demand  to  deliver  up  the  mare,  claim- 
's Ace:  Saltus  v.  Everett,  20  Wend.  (N.  T.)  267,  32  Am.  Dec.  541  (1838). 
T»  See  Lehmanu  v.  Schmidt,  87  Cal.  15,  25  Pac.  161  (ISDO).  II 

1 1 


Sec.  2)  BAILOR    AND    BAILEE  109 

ing  a  lien  not  only  for  the  lis.,  but  for  a  further  sum  amounting  alto- 
gether to  £9.  7s.  ^-Yod.,  for  covering  other  mares  belonging  to  the  plain- 
tiff, and  including  also  a  small  sum  for  poor-rates;  on  which  demand 
and  refusal,  the  plaintiff,  without  making  any  tender  of  the  lis., 
brought  the  present  action.  *  *  *  The  learned  Judge,  on  these 
facts  being  proved,  directed  the  jury  to  find  a  verdict  for  the  plaintiff 
for  £25.,  the  value  of  the  mare,  giving  liberty  to  the  defendant  to  move 
to  enter  a  nonsuit.     *     *     * 

Parke,  B.^'  *  *  *  The  court  are  unanimous  in  considering 
that  if  the  defendant  had  a  lien,  he  did  not  waive  it  under  the  circum- 
stances of  this  case,  by  claiming  to  hold  the  mare  not  merely  for  the  ex- 
pense of  covering  her,  but  also  for  the  expense  of  covering  other  mares 
belonging  to  the  same  plaintiff,  and  also  for  some  pajTnents  made  in 
respect  of  f)oor-rates  which  he  had  against  him.  The  only  way  in 
which  such  a  proposition  could  be  established,  would  be  to  shew  that 
the  defendant  had  agreed  to  waive  the  lien,  or  that  he  had  agreed  to 
waive  the  necessity  of  a  tender  of  the  minor  sum  claimed  to  be  due. 
Looking  at  the  mode  in  which  he  made  the  claim,  and  at  the  ground  on 
which  he  considered  it  to  be  made,  I  think  it  is  clear  he  has  not  waived 
the  lien,  or  excused  the  necessity  of  making  a  tender ;  for  when  the  de- 
mand was  made,  he  said,  "I  have  a  general  account  with  you,  on  which 
a  balance  is  due  to  me  of  so  much."  and  part  of  it  was,  particularly,  a 
charge  of  lis.  for  covering  this  mare.  *  *  *  In  this  case  it  would 
be  strange  to  say  that  the  defendant  meant  to  waive  his  lien  of  the  lis., 
when  that  was  one  of  the  things  he  said  he  would  hold  the  mare  for. 
and  it  would  be  equally  strange  to  say  that  he  meant  to  excuse  the  ten- 
der of  that  sum,  when  no  tender  was  made  of  any  sum  at  all.  I  do  not 
mean  to  say  that  such  circumstances  may  not  occur  as  would  amount  to 
the  waiver  of  a  lien,  and  of  the  tender,  but  that  a  great  deal  more  must 
have  passed  than  was  proved  to  have  passed  on  the  present  occasion. 
If  he  had  said,  "You  need  not  trouble  yourself  to  make  a  tender  of  the 
sum  for  which  I  have  a  lien,  and  I  shall  claim  to  hold  the  mare  for  it," 
the  plaintiff  would  then  be  in  the  same  situation  as  if  a  tender  had  been 
made :  but  we  think  the  defendant  cannot  be  deprived  of  his  right  of 
holding  the  propertv'  on  which  he  had  a  lien,  by  any  thing  that  has 
passed  on  the  present  occasion.     *     *     * 

Aldt-rson".  B.  *  *  *  I  entirely  concur.  It  seems  to  me  a  mon- 
strous proposition,  to  saj'  that  a  party  who  claims  in  respect  of  two 
sums  to  detain  a  mare,  is  to  be  supposed  to  have  waived  his  right  to 
detain  her  as  to  one."  The  more  natural  conclusion  is,  that  the  de- 
fendant intended  to  act  upon  both  ;  if  so,  and  if  the  other  party  is  in- 
formed of  that,  it  then  became  his  dut\'  to  consider  whether  he  would 
tender  one  or  the  other.     *     *     *     j(-  «eems  to  me  you  cannot  say,  that 

''  The  statement  of  facts  is  ahridged.  and  parts  of  the  opinions  of  Parke 
and  Alderson.  BB..  and  the  opinion  of  Bolhind,  B.,  are  omitted. 
" '  See  Dirks  v.  Richards,  note  81,  post,  p.  110. 


110  POSSESSORY  INTERESTS  IN   CHATTELS  (Cll.  3 

because  the  party  claims  more  than  it  may  be  ultimately  found  he  had 
a  right  to,  he  would  not  have  a  right  to  a  tender  of  the  sum  which  the 
other  ought  to  pay. 

Rule  absolute  to  enter  nonsuit." 


DIRKS  V.  RICHARDS. 
(Court  of  Common  Pleas,  1S42.     4  Man.  &  G.  574.) 

Detinue,  for  a  picture.  Pleas :  non  detinet,  and  not  possessed ;  upon 
botli  of  which  issue  was  joined. 

At  the  trial  before  Alderson,  B.,  at  the  last  assizes  for  the  county  of 
Surrey,  it  appeared  that  the  picture  had  been  placed  in  the  hands  of  a 
person  named  Bye  for  sale.  Bye  deposited  it  with  the  defendant,  an 
auctioneer,  at  the  same  time  telling  him  that  his  charge  for  warehouse 
rent  must  be  moderate.  The  plaintiff  subsequently  demanded  the  pic- 
ture, whereupon  the  defendant  made  a  claim  of  5s.  for  warehouse- 
room.  The  plaintiff  having  made  a  second  demand  in  writing,  accom- 
panied with  an  offer  to  pay  the  defendant  any  lien  he  might  have  on 
the  picture  for  warehouse-room,  the  latter  stated  that  he  would  not  de- 
liver it  up  until  he  was  paid  a  debt  of  £8.  due  to  him  from  Bye.  No 
tender  was  made  of  any  specific  sum  for  warehouse-room.     *     *     *  so 

MaulE,  J.  Did  not  the  claim  of  the  £8.  by  the  defendant  amount 
to  this?  "I  do  not  recognise  your  right  to  the  picture;  I  claim  a  lien 
on  it  for  £8.  due  to  me  from  Bye,  who  deposited  it  with  me."  If  the 
defendant  set  up  an  inconsistent  claim,  it  was  clearly  a  waiver  of  his 
claim  for  warehouse-rent.®^ 

Rule  discharged.*' 

'»  Compare  Thatcher  v.  Harlan,  2  Houst.  (Del.)  178  (1S59). 

80  The  statement  of  facts  is  abridged. 

81  Without  supposing  the  party  to  waive  his  right  to  detain  in  respect  of 
the  specitic  lien,  the  assumption  of  the  right  to  withhold  the  possessiou  of 
the  mare  [in  Scarfe  v.  Morgan]  from  the  owner,  until  performance  of  a  con- 
dition which  the  person  detaining  had  no  right  to  impose,  would  appear  to 
be  a  tortious  conversion  on  the  part  of  such  person,  notwithstanding  any 
other  title  to  detain  remaining  in  him. 

In  Scarfe  v.  Morgan,  though  there  may  have  been  a  waiver  (i.  e.,  a  dis- 
pensation with  the  necessity)  of  a  tender,  there  could  have  been  no  intention 
to  waive  or  abandon  the  right  to  detain  for  the  particular  charge,  there  hav- 
ing been  an  express  demand  of  both  suras.  In  the  principal  case  no  mention 
appears  to  have  been  made  of  the  5s.  when  the  £8.  was  demanded.  It  would, 
however,  be,  perhaps,  too  much  to  infer  from  that  omission,  that  the  defend- 
ant really  meant  to  give  up  his  claim  for  warehouse  rent. — Rep. 

82ACC.:  Lambert  v.  Robinson.  1  Esp.  119  (1793);  Adams  v.  Clark,  9  Cush. 
(Mass.)  215,  57  Am.  Dec.  41  (lS.o2).  As  to  the  construction  to  be  put  on  lan- 
guage used  by  the  lien  holder,  see  Kerford  v.  Mondel,  28  L.  J.  (N.  S.)  Exch. 
303  (1859) ;  Munson  v.  Porter,  63  Iowa,  453,  19  N.  W.  290  (1884). 


Sec.  2)  BAILOR  AND  BAILEE  111 

FOLSOM  V.  BARRETT. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.    180  Mass.  439,  62  N.  E.  723, 

91  Am.  St.  Rep.  320.) 

[Contract  on  an  account  annexed  for  boarding  and  training  a  horse 
called  Sun  Pointer,  the  property  of  the  defendant.] 

Hammoxd,  J.*^  On  July  27,  1899,  the  plaintiff  had  a  lien  upon  the 
horse  Sun  Pointer,  to  secure  him  for  the  payment  of  the  expenses  of 
its  keeping  up  to  that  time.  The  amount  due  as  claimed  by  the  plain- 
tiff was  $300.96,  and,  although  requested  by  the  defendant,  he  refused 
to  deliver  up  the  horse  except  upon  the  payment  of  that  sum.  The 
auditor  has  found  that  the  balance  due  at  that  time  was  only  $129.17. 

The  defendant  requested  the  judge  to  rule  in  substance,  that  (1)  if 
the  defendant  demanded  the  horse  of  the  plaintiff  and  the  plaintiff  re- 
fused to  deliver  him  up  except  upon  the  payment  of  a  certain  sum 
which  was  larger  than  the  sum  actually  due,  then  as  matter  of  law  the 
[plaintiff  wrongfully  held  the  horse;  and  (2)  if  the  defendant  requested 
of  the  plaintiff'  a  statement  of  the  amount  due,  so  tliat  the  defendant 
could  pay  what  was  due  and  take  his  horse,  and  if  upon  that  the  plain- 
tiff stated  that  he  would  not  give  up  the  horse  e.xcept  upon  the  payment 
of  a  certain  sum  then  named  by  him  which  was  materially  in  excess  of 
the  amount  actually  due,  then  the  defendant  was  not  bound  to  tender 
any  sum  to  the  plaintiff,  and  the  latter  wrongfully  held  the  horse. 

The  judge  refused  to  rule  as  requested,  but  ruled  in  substajice,  that 
if  the  plaintiff  fraudulently  claimed  more  than  was  due  for  the  purpose 
of  keeping  possession  of  the  horse,  he  wrongfully  kept  the  horse;  but 
that  if  he  believed  the  sum  due  to  him  to  be  as  stated  by  him  at  the 
time  he  refused  to  deliver  the  horse,  then  the  fact  that  that  sum  was  ex- 
cessive would  not  work  a  discharge  of  the  lien.  No  instructions  were 
given  as  to  the  subject  of  tender. 

Where  a  lienor  bases  his  refusal  to  surrender  property  upon  some 
right  independent  of  or  inconsistent  with  the  lien,  it  is  held  that  he  has 
waived  his  lien  and  he  cannot  afterwards  set  it  up.  Boardman  v.  Sill, 
1  Camp.  410,  note;  Dirks  v.  Richards,  4  Man.  &  Gr.  574.  But  that  is 
not  this  case.  Here  the  plaintiff  expressly  named  his  lien  and  insisted 
upon  it,  and  there  was  no  question  as  to  its  nature.  It  was  for  the 
keeping  of  the  horse  a  certain  definite  time.  He  based  his  right  to 
hold  the  horse  upon  that  lien  and  upon  nothing  else.  His  demand, 
however,  was  excessive.  He  was  right  as  to  the  existence  of  the  lien 
upon  which  right  alone  he  was  insisting,  but  wrong  as  to  the  amount 
due.  If  he  fraudulently  claimed  more  than  was  due  he  lost  his  lien, 
but  if  his  claim  was  made  in  good  faith,  it  was  still  in  the  power  of  the 
defendant  to  discharge  the  lien  by  a  payment  of  the  sum  actually  due. 

83  Part  of  the  opinion  is  omitted. 


112  POSSESSOKY   INTKItESTS  IN  CHATTELS  (.Ch.  3 

If  such  a  payment  had  been  made  at  that  time,  the  lien  would  have  been 
destroyed  and  consequently  the  subsequent  detention  of  the  horse  by 
tlie  plaintiff  would  have  been  wrongful;  and  that  would  have  been  so 
whether  or  not  the  plaintiff  honestly  believed  his  claim  to  be  correct. 
The  lien  was  simply  a  right  to  hold  the  horse  until  a  certain  sum  was 
paid,  and  when  that  sum  was  paid  the  right  was  gone.  The  good  faith 
of  the  plaintiff  could  not  increase  that  sum.  The  same  result  would 
have  followed  if  a  tender  of  the  sum  due  had  been  made  and  refused. 
Co.  Lit.  207  a;  Coggs  v.  Bernard,  Ld.  Raym.  909,  917;  Bac.  Abr.  Bail- 
ment (B) ;  Jarvis  v.  Rogers,  15  Mass.  389,  409;  Schayer  v.  Common- 
wealth Loan  Co.,  163  Mass.  322,  39  N.  E.  1110,  and  cases  cited. 

No  payment  or  tender,  however,  was  made;  and  where,  as  in  this 
case,  there  is  a  lien  which  is  insisted  upon  by  the  creditor  and  his  only 
error  is  in  making  an  excessive  demand  which  he  honestly  believes  to 
be  correct,  the  fact  that  the  demand  is  excessive  does  not  ordinarily 
relieve  the  debtor  from  the  necessity  of  making  a  tender.  If  the  debt- 
or desires  to  avail  himself  of  this  honest  mistake  of  the  creditor,  he 
must  make  or  tender  payment  of  the  sum  actually  due,  and  neither  tlie 
ability,  readiness  or  simple  offer  to  pay  is  a  tender.  There  must  be  an 
actual  production  of  the  money,  unless  such  production  be  dispensed 
with  by  the  express  declaration  of  the  creditor  that  he  will  not  accept 
it  or  by  some  equivalent  declaration  or  act.  Thomas  v.  Evans,  10  East, 
101 ;  Breed  v.  Hurd,  6  Pick.  356.  See  Chit.  Cont.  (10th  Am.  Ed.)  890, 
891,  and  cases  cited. 

We  are  of  opinion,  that  there  is  no  evidence  in  this  case  of  any  dec- 
laration or  conduct  of  the  plaintiff  which  would  excuse  the  defendant 
from  making  an  actual  tender.  It  is  true  that  the  bill  recites,  that  the 
plaintiff  refused  to  deliver  up  the  horse  except  upon  the  payment  of 
the  $300.96,  but  it  does  not  appear  that  the  defendant  ever  desired  or 
attempted  to  make,  or  indeed  that  he  ever  was  ready  to  make,  any 
tender  whatever,  or  that  the  plaintiff  ever  had  any  reason  to  suppose 
that  in  any  of  the  interviews  with  the  defendant  the  latter  was  thinking 
of  a  tender,  or  was  prepared  then  and  tliere  to  make  it  or  to  make  any 
exhibition  of  money.  Under  these  circumstances,  the  simple  statement 
made  by  the  plaintiff  at  the  time  the  horse  was  demanded,  that  he 
would  not  deliver  him  up  except  upon  payment  of  the  whole  sum,  is 
not  enough  to  warrant  a  finding,  that  he  had  dispensed  with  the  right 
to  an  exhibition  of  the  money  of  the  defendant,  or  in  other  words,  that 
he  had  waived  the  right  to  a  formal  and  complete  tender;  and  the  judge 
presiding  at  the  trial  was  right  in  declining  to  instruct  as  to  the  law  of 
tender. 

The  case  is  clearly  distinguishable  from  Hamilton  v.  McLaughlin, 
145  Mass.  20,  12  N.  E.  424,  upon  which  the  defendant  relies.  There 
being  no  tender  and  no  lawful  excuse  for  not  making  one,  there  was  no 
error  in  instructing  the  jury  that  in  this  case  the  lien  was  not  lost  by 
the  excessive  demand  made  by  the  plaintiff  in  good  faith.     Kerford  v. 


Sec.  2)  BAILOB    AND    BAILEE  '  113 

Mondel,  5  H.  &  N.  931 ;  Alderson  B.,  in  Jones  v.  Tarleton,  9  M.  &  W. 
675;  Jones,  Liens,  §§  1025,  1026,  and  cases  therein  cited.  See  also 
Fowler  v.  Parsons,  143  Mass.  401,  9  N.  E.  799. 

That  being  so,  the  further  question  remains  whether  the  plaintiff  can 
hold  the  defendant  personally  liable  for  the  expense  incurred  after  the 
demand.  *  *  *  f  j^g  horse  was  left  by  the  defendant  in  the  hands 
of  the  plaintiff  without  the  latter's  fault,  and  the  plaintiff  was  bound  to 
take  reasonable  measures  for  its  preservation.  For  this  expense  he 
may  hold  the  horse  or  recover  against  the  defendant.  See  Great 
Northern  Railway  v.  Swaffield,  L.  R.  9  Ex.  132. 

Exceptions  overruled. *■* 


HANNA  V.  PHELPS. 
(Supreme  Court  of  Indiana,  ISuo.     7  Ind.  21,  63  Am.  Dec.  410.) 

Davison,  J.*'  Assumpsit.  The  complaint  is  that  Phelps,  the  plain- 
tiff below,  on  the  first  day  of  December,  1849,  delivered  to  Hanna 
and  Burr,  who  were  then  engaged  in  the  business  of  rendering  lard 
from  hogs'  heads  by  steam,  and  barreling  the  lard  so  rendered  for 
hire,  at  the  town  of  Wabash,  three  thousand  hogs'  heads,  which  they 
agreed  to  render  into  lard,  and  barrel  the  same  for  the  plaintiff,  with- 
in a  reasonable  time,  etc.,  for  which  service  he  agreed  to  pay  them 
a  reasonable  compensation,  etc.  It  is  averred  that  the  defendants 
have  failed  to  perform  the  agreement  on  their  part,  etc. 

Pleas:  1.  The  general  issue.  2.  Performance.  3.  That  the  plain- 
tiff was  indebted  to  the  defendants  200  dollars,  for  rendering  lard  and 
barreling  the  same,  etc.,  which  sum  exceeds  in  amount  their  indebted- 
ness to  him,  etc. 

Issues  being  made  on  these  pleas,  the  cause  was  tried  by  the  Court, 
who  found  for  the  plaintiff.     New  trial  refused,  and  judgment. 

The  Court,  upon  the  defendants'  motion,  gave  a  written  statement 
of  the  facts  on  which  its  finding  was  based,  and  of  the  conclusions 
of  law  arising  on  the  facts.    That  statement  is  as  follows : 

1.  The  plaintiff  delivered  to  the  defendants,  as  bailees,  two  thou- 
sand one  hundred  hogs'  heads,  out  of  which  lard  \vas  to  be  rendered 
by  them  for  him,  which  heads  each  produced  four  pounds  of  lard, 
making  eight  thousand  four  hundred  pounds. 

8*  The  master  of  a  vessel  claimed  a  lien  of  £6.500.  for  freight  and  £1.000. 
for  general  average,  and  refused  to  deliver  the  cargo  for  less  than  f7..50O. 
The  claim  for  freight  was  excessive,  and  on  a  settlement  of  accounts  there 
was  nothing  due  from  the  cargo  on  general  avera.ge.  Tlie  owner  of  the  cargo 
had  intended  to  tender  an  amount  less  than  that  actually  due  for  the  freight, 
but  in  fact  tendered  nothing.  Held,  the  owner  of  the  cargo  is  entitled  to 
damages  for  its  detention.  The  Norway,  .3  Moo.  P.  C.  (N.  S.)  24.5  (1865). 
CJompare  Loewenl)erg  v.  Rallwav  Co.,  56  Ark.  4.39,  19  S.  W.  1051  (1S92) ;  Sut- 
ton V.  Stephan,  101  Cal.  545,  36  Tac.  100  (1894). 

86  Part  of  the  opinion  is  omitted. 
Biq.Pers.Prop. — 8 


114  POSSESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

2.  The  defendants  delivered  to  the  plaintiff,  at  Jackson's  warehouse, 
in  the  town  of  Wabash,  in  twenty-three  barrels,  five  thousand  one 
hundred  and  sixty-two  pounds  of  lard  leaving  unaccounted  for  and 
undelivered,  three  thousand  two  hundred  and  thirty-eight  pounds. 
The  lard  was  worth  5  cents  per  pound,  making  for  the  last  named 
quantity,  in  money  161  dollars  and  90  cents.  As  a  compensation  for 
rendering  said  lard,  the  defendants  were  entitled  to  84  dollars,  leav- 
ing a  balance  due  the  plaintiff  of  77  dollars  and  90  cents. 

3.  The  plaintiff,  after  the  delivery  of  the  twenty-three  barrels,  and 
before  the  commencement  of  this  suit,  notified  the  defendants  to  de- 
liver to  him  all  the  lard  made  from  said  heads ;  but  they  declined  to 
deliver  any  more  lard.  He  did  not,  at  any  time  before  this  suit,  either 
pay  or  tender  to  them  any  sum  for  their  services,  nor  was  any  demand 
made  by  them  for  such  services.  When  the  twenty-three  barrels  were 
delivered,  the  lard  was  subject  to  their  claim  for  rendering  the  same, 
amounting  to  51  dollars  and  63  cents,  which  amount  was  never  paid 
to  them.    The  delivery  at  Jackson's  ware-house  was  witli  his  consent.. 

These  were  all  the  facts  proved  in  the  cause ;  and  upon  them  the 
Court,  as  a  conclusion  of  law,  decided  that  no  payment  or  tender  for 
services  in  rendering  the  lard,  was  necessary  before  suit. 

Was  this  decision  correct?  Generally  speaking,  if  a  chattel  deliv- 
ered to  a  party  receive  from  his  labor  and  skill  an  increased  value,  he 
has  a  specific  lien  upon  it  for  his  remuneration  provided  there  is  noth- 
ing in  the  contract  inconsistent  with  the  existence  of  the  lien.  And 
.such  lien  exists  equally  whether  there  be  an  agreement  to  pay  a  stipu- 
lated price,  for  "the  labor  and  skill,"  or  an  implied  contract  to  pay  a 
reasonable  price.  The  present  is  one  of  the  cases  in  which  liens  usu- 
ally exist  in  favor  of  the  party  who  has  bestowed  services  on  property 
delivered  to  him  for  the  purpose.  And  unless  the  record  discloses 
facts  or  circumstances  sufficient  to  produce  the  inference  that  the  de- 
fendants waived  their  lien  before  the  institution  of  this  suit,  they  were 
not  compelled  to  give  up  the  property,  when  the  plaintiff  demanded 
it,  without  the  payment  or  tender  of  a  reasonable  compensation  for 
rendering  and  barreling  the  lard.  If  the  defendants,  at  the  time  of 
the  demand,  had  refused,  on  the  ground  of  their  lien,  to  part  with  the 
property,  the  law  of  this  case  would  be  clearly  in  their  favor;  but  here 
the  plaintiff's  demand  was  answered  by  an  absolute  refusal  to  de- 
liver any  more  lard.  We  are  therefore  to  inquire  whether  that  re- 
fusal waived  the  lien. 

Upon  this  subject  the  authorities  are  not  uniform.  In  England,  the 
rule  seems  to  be,  that  a  person  having  a  lien  upon  goods,  does  not 
waive  it  by  the  mere  fact  of  his  omitting  to  state  that  he  claims  them  in 
that  right,  when  they  are  demanded.  But  if  a  different  ground  of  re- 
tention than  that  of  the  lien  be  assumed,  the  lien  ceases  to  exist.  White 
V.  Gainer,  9  Moore,  41 ;  2  Bing.  23 ;  1  Carr.  &  P.  324 ;  1  Camp.  410. 
It  is,  however,  contended  that  the  refusal  of  the  defendants,  to  have 


Sec.  2)  BAILOR    AND    BAILEE  115 

shielded  them,  should  have  been  qualified  by  their  claim  of  a  lien. 
There  is  authority  in  support  of  that  position.  Dows  v.  Morewood, 
10  Barb.  (N.  Y.)  183,  was  replevin  for  twenty-one  cans  of  oil.  In  that 
case,  it  was  held  "that  the  defendant  having,  upon  demand  made,  re- 
fused to  deliver  tjie  oil  to  the  plaintiff,  without  setting  up  any  lien 
thereon,  waived  his  right  to  set  up  a  lien  afterwards  for  freight,  etc. ; 
that  he  could  not  be  allowed  to  deny  the  plaintiff's  title,  before  suit 
brought,  and  afterwards  defeat  a  recovery  by  setting  up  a  lien." 

We  are  inclined  to  adopt  this  rule  of  decision.  An  unqualified  re- 
fusal, upon  a  demand  duly  made,  is  evidence  of  a  conversion ;  because 
it  involves  a  denial  of  any  title  whatever  in  the  person  who  makes  the 
demand.  In  the  case  before  us,  the  defendants  "declined  to  deliver 
any  more  lard."  This  was,  in  effect,  an  assumption  that  they  had  in 
their  possession  no  more  belonging  to  the  plaintiff.  At  least  he  had 
a  right  to  infer  from  their  answer  to  his  demand,  that  they  would  de- 
liver to  him  no  more  lard,  unless  compelled  to  do  so  by  action  at  law. 
And  having  thus  assumed  a  position  relative  to  the  property  inconsist- 
ent with  his  title,  he  had,  further,  the  right  to  infer  that  a  tender  to 
the  defendants  for  their  services  would  be  unavailing.  We  are  of 
opinion  that  the  facts  proved  are  sufficient  to  sustain  the  judg- 
ment.     *      *      *  86 


MEXAL  V.  DEARBORN. 

(Supreme  Judicial  Court  of  Massachusetts,  1859.    12  Gray,  3.36.) 

[Action  of  tort  for  taking  a  quantity  of  calf  skins.  The  declaration 
in  one  count  alleged  title  in  the  plaintiff ;  and  in  another  a  lien  for 
work  done  upon  them  by  the  plaintiff'  as  a  currier.  Answer,  that  the 
goods  belonged  to  William  Jameson,  and  were  taken  possession  of 
under  a  warrant  issued  in  proceedings  in  insolvency  against  Jameson, 
directed  to  the  defendant  as  messenger.] 

At  the  trial  in  the  superior  court  of  Suffolk  at  September  term, 
1857,  the  plaintiff  oft'ered  evidence  that  the  calf  skins  were  left  with 
him  by  Jameson  to  be  curried ;  and  that  when  the  work  was  partially 
done,  Jameson  sold  them  to  him  in  payment  of  a  debt  due  him,  a  part 

86  See  Williams  v.  Smith,  153  Pa.  462,  25  Atl.  1122  (1S93). 

"By  their  absolute  refusal  to  deliver,  without  any  qualification,  they  waived 
the  riyht  to  set  up  any  lien  which  they  had  not  previously  communicated  to 
the  plaintiffs.  They  cannot  be  allowed  to  deny  the  plaintiff's  title  before  suit 
brought  and  afterwards  defeat  a  recovery  by  setting  up  a  concealed  lien." 
Dows  V.  Morewood,  10  Barb.  (N.  Y.)  183,  187  (1850).  Aec:  Thompson  v.  Rose, 
16  Conn.  71,  41  Am.  Dee.  121  (1844).  See  Fowler  v.  Parsons,  143  Mass.  401, 
406,  407,  9  N.  E.  790  (1887). 

A.  stopped  goods  in  transit  while  in  B.'s  warehouse.  B.  said  he  had  no 
lien.  A.  then  replevied  tlie  noods  from  B.  Held,  B.  has  waived  his  lieu. 
Blackman  v.  Pieree,  23  Cal.  508  (1803). 


lie  POSSESSORY   INTERESTS   IN  CHATTELS  (Cll.  3 

of  which  was  for  the  work  done  on  these  skins,  and  gave  a  bill  of  sale 
thereof  to  the  plaintiff,  in  whose  possession  they  then  were. 

It  appeared  that  proceedings  in  insolvency  were  duly  commenced 
against  Jameson  soon  after  this  sale ;  and  a  warrant  issued  to  the  de- 
fendant as  messenger,  on  which  he  took  the  skins.  The  defendant  of- 
fered evidence  that  the  sale  to  the  plaintiff  was  fraudulent  and  void 
as  against  Jameson's  creditors. 

The  plaintiff  claimed  to  recover  the  whole  value  of  the  skins,  on 
the  ground  that  the  sale  was  not  fraudulent ;  and  also  to  recover,  on 
the  second  count  the  amount  of  work  performed  on  the  skins,  on  the 
ground  that  he  had  a  subsisting  lien  on  them  therefor. 

Abbott,  J.,  ruled,  "that  if  the  plaintiff  bought  the  skins  of  Jameson, 
taking  a  bill  of  sale  of  them,  together  with  the  possession,  and  this 
purchase  was  good  as  between  the  parties,  then  if  the  jury  were  satis- 
fied that  the  sale  was  fraudulent  as  against  the  creditors  of  Jameson, 
and  that  when  the  defendant  took  them  the  plaintiff  claimed  under 
said  bill  of  sale  to  him,  and  not  on  the  ground  of  having  a  lien  on 
them,  and  had  so  continued  in  his  claim  till  the  commencement  of 
this  action,  never  demanding  the  amount  of  his  lien  of  the  defendant, 
or  notifying  him  that  he  claimed  any,  but  persisting  in  his  claim  un- 
der the  sale  to  him,  the  plaintiff  would  not  be  entitled  to  recover  on 
the  second  count  the  amount  of  his  lien."  The  jury  returned  a  ver- 
dict for  the  defendant,  and  the  plaintiff  alleged  exceptions. 

Merrick,  J.  By  purchasing  the  calf  skins,  which  had  been  put  into 
his  possession  to  be  curried,  and  by  taking  a  bill  of  sale  thereof,  and 
afterwards,  to  the  time  of  the  commencement  of  this  action,  claiming 
them  solely  under  that  title,  without  having  given  notice  of  any  other 
to  the  defendant  when  he  took  them  away  in  discharge  of  his  duty 
as  messenger  under  the  proceedings  in  insolvency  against  the  vendor, 
the  plaintiff  lost  or  waived  the  lien  which  he  had  previously  acquired. 
A  good  and  sufficient  consideration  was  paid  for  the  transfer  of  the 
property,  and  as  between  the  parties  to  the  contract  the  sale  was  ab- 
solute and  complete.  The  ownership  thus  obtained  was  entirely  in- 
consistent with  the  existence  of  the  previous  lien.  A  lien  is  an  in- 
cumbrance upon  property,  a  claim  upon  it  which  may  be  maintained 
against  the  general  owner.  But  there  is  no  foundation  upon  which  he 
who  owns  the  whole  can  create  a  special  right  in  his  own  favor  to  a 
part.  The  inferior  or  partial  title  to  a  chattel  necessarily  merges  in 
that  which  is  absolute  and  unconditional,  when  both  are  united  and 
held  by  the  same  individual.  This  is  a  general  consequence.  But  in 
the  present  instance,  it  is  obvious  tliat  the  parties  extinguished,  and 
intended  to  extinguish,  the  lien  which  had  been  previously  created 
upon  the  calf  skins ;  for  the  value  of  the  work  and  labour  which  had 
previously  been  bestowed  upon  them  by  the  vendor  was  by  their  ex- 
press agreement  made  part  of  the  consideration  of  the  sale.  After 
such  a  transaction  the  rights  of  the  parties  were  wholly  changed.    The 


Sec.  2)  BAILOR    AND    BAILEE  117 

vendor  could  no  longer  assert  any  claim  to  the  property,  and  the  work- 
man had  none  against  his  employer.  His  debt  had  been  paid,  the 
property  had  become  his  own,  and  a  lien  upon  it  in  his  own  favor 
thereby  rendered  both  needless  and  impossible. 

But  the  result  is  the  same  if  the  facts  upon  which  the  ruling  ex- 
cepted to  in  the  superior  court  was  made  are  considered  in  another 
aspect.  The  law  will  not  allow  a  party  to  insist  upon  and  enforce  in 
his  own  behalf  a  secret  lien  upon  personal  property  after  he  has  claim- 
ed it  unconditionally  as  his  own,  and  has  thereby  induced  anothei  to 
act  in  relation  to  it,  in  some  manner  affecting  his  own  interest,  as 
he  would,  or  might,  not  have  done  if  he  had  been  openly  and  fairly 
notified  of  the  additional  ground  of  claim.  It  would  be  fraudulent  in 
him  to  practise  such  concealment  to  the  injury  of  others ;  and  to  pre- 
vent the  possibility  of  attempts  so  unjust  becoming  successful,  the 
law  implies  that  an  intended  concealment  of  that  kind  is  of  itself  a 
waiver  of  the  lien.  The  authorities  cited  by  the  counsel  for  the  defend- 
ant, not  less  than  in  its  intrinsic  reasonableness,  fully  warrant  the  rul- 
ing to  which  the  plaintiflf  objected. 

Exceptions  overruled.'^ 


COWELL  V.  SIMPSON. 
(Court  of  Chancery,  1S09.    16  Ves.  275.) 

[The  defendant's  testate  was  indebted  to  his  attorneys  before  his 
death.  The  defendant  as  executor  gave  them  two  notes,  due  in  three 
years,  for  the  amount  of  the  debts.  The  attorneys  claimed  to  retain 
under  their  attorney's  lien  certain  papers  belonging  to  the  deceased. 
The  defendant  filed  a  motion  to  have  them  delivered  to  him.] 

The  Loe?d  Chaxcellor  [Eldon].*^  *  *  *  Where  by  the  us- 
age of  trade  a  person  has  a  lien  on  goods  in  his  hands  for  work  per- 
formed upon  them,  and  farther,  for  work  upon  other  goods,  not  then 
in  his  possession,  having  been  delivered  over,  according  to  the  usages 
of  different  trades,  it  is  settled  by  modem  decisions,  that  by  taking 
a  security  the  lien  is  gone,  even  with  regard  to  tlie  goods  in  his  pos- 
session; and  cannot  accompany  that  special  security:  which  deter- 
mines the  implied  contract.     It  is  necessary  to  see,  upon  what  princi- 

8  7  Compare  Avery  v.  Hackley,  20  Wall.  407,  22  L.  Ed.  385  (1874). 

A.  had  a  factor's  lien  on  B.'s  sheep.  C,  a  creditor  of  B.,  attached  them. 
A.  brought  replevin,  alleging  his  lien ;  he  amended  his  complaint  during  the 
trial  by  also  alleging  ownership ;  the  jury  found  in  favor  of  the  lien,  but 
against  ownership ;  the  amendment  was  subsequently  withdrawn.  Held,  A. 
has  not  lost  his  lien.  Rosenhaum  v.  Hayes,  S  N.  D.  461,  79  N.  W.  987  (1S99). 
Compare  Hudson  v.  Swan,  S3  N.  Y.  552  (1881). 

*8  Part  of  the  opinion  is  omitted. 


118  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

pie  that  stands.  I  rather  think,  it  is  not  regulated  by  the  usage  of 
trade.  It  has  been  accounted  for  in  this  way ;  that  the  lien  is  gone 
by  the  effect  of  the  intention  to  substitute  tlie  special  contract  for  the 
implied  one ;  the  necessities  of  mankind  requiring,  that  the  goods 
should  be  delivered  for  consumption,  it  is  not  to  be  presumed,  that  the 
lien  was  to  be  extended  through  the  whole  period  ;  which  would  create 
much  difficulty  in  the  usual  course  of  dealing  between  tradesmen  and 
tlieir  customers.  I  have  however  heard  that  denied ;  and  it  has  been 
put  upon  a  rule  of  law,  that  the  special  contract  removes  the  implied 
one :  but,  if  that  is  the  ground,  this  case  would  desen'e  much  con- 
sideration. The  solicitor  taking  a  security,  which  has  three  years  to 
run,  as  the  client  may  have  occasion  for  his  papers,  there  is  as  much 
reason,  that  the  lien  should  not  accompany  the  security  through  that 
period  as  in  the  instance  of  a  trade ;  and  the  conclusion  is  equally 
difficult,  that  the  papers,  if  the  client  has  occasion  for  them,  could  be 
withheld.     I  am  not  at  present  satisfied  that  this  lien  exists. 

July  26th.  The  Lord  Chancellor  [Eldon].  *  *  *  The  prac- 
tice with  regard  to  the  lien  of  an  attorney  upon  papers  is  not  very 
ancient.  Lord  Mansfield  states  that  expressly ;  and  that  he  had  argued 
the  question  in  the  Court  of  Chancer)';  and  Sir  James  Burrow  men- 
tioned the  first  decision,  which  established  it  in  a  Court  of  Law  by 
analogy  to  other  cases  of  lien.  Looking  through  the  general  doctrine 
of  lien,  as  applicable  to  all  cases,  except  the  purchase  of  an  estate,  with 
reference  to  which  it  has  in  a  series  of  decisions  been  extended,  it  may 
be  described  as  prima  facie  a  right  accompanying  the  implied  contract. 
In  the  case  of  a  factor,  who  has  a  lien  both  for  his  expenditure  upon 
the  goods  in  his  possession  and  his  general  balance  upon  former  trans- 
actions, entering  into  a  special  contract  for  a  particular  mode  of  pay- 
ment he  loses  the  lien.  In  various  trades  the  demand  being  for  work 
and  labor,  applied  in  some  instances  upon  the  particular  goods,  in 
others  upon  other  goods  also,  though  the  possession  had  been  given 
up,  it  is  universally  laid  down,  that  if  that  takes  place  under  a  spe- 
cial agreement,  there  is  no  such  lien;  and  if  it  commenced  under  an 
implied  contract,  and  afterwards  a  special  contract  is  made  for  pay- 
ment, in  the  nature  of  the  thing  the  one  contract  destroys  the  other. 
The  exigencies  of  mankind  requiring  the  goods  to  be  delivered  for  con- 
sumption, the  implication  from  an  engagement  for  security  of  an  en- 
gagement to  deliver  tlie  goods  without  payment  is  necessary:  other- 
wise from  a  promissory  note,  payable  in  three  years,  a  contract  must 
be  implied,  that  tlie  goods  are  to  be  retained  during  that  period ;  de- 
stroying the  other  special  contract.  So,  in  this  instance,  if  the  solicitor 
says,  he  will  not  proceed  in  tlie  business,  and  will  not  deliver  up  the 
papers,  the  consequence  is,  that  he  destroys  the  express  contract  to 
postpone  payment  for  three  years.  Therefore,  unless  from  the  fact, 
that  he  has  taken  this  security,  you  can  imply,  that  he  is  to  keep  the 


Sec.  2)  BAILOK    AND    BAILEE  119 

papers  three  years,  though  the  vital  interests  of  the  owners  may  de- 
pend on  the  possession  of  tliem,  the  implication  is  necessary,  that  he 
is  to  deliver  them  up,  and  rely  on  the  other  contract.     *     *     *  °* 


III.  PledgB 
GOSS  V.  EMERSON. 

(Supreme  Court  of  New  Hampshire,  1S51.    23  N.  H.  [3  Foster]  3S.) 

Trover,  for  four  promissory  notes,  gfiven  by  one  Hatch  to  the  plain- 
tiff, on  tlie  8th  of  April,  1S46,  for  fifty  dollars  each,  and  payable  to 
him,  or  order,  in  one,  two,  three  and  four  years.  The  writ  was  dated 
September  29,  1848;  and  was  served  on  the  same  day,  but  not  till 
after  the  transactions  hereinafter  set  forth. 

Plea,  the  general  issue. 

It  appeared  in  evidence  tliat  on  the  29th  of  March,  1848,  the  plain- 
tiff gave  to  the  defendant  tlie  following  note,  or  accountable  paper,  to 
wit: 

"Hartford,  March  29th,  1848. 

"Received  of  D.  B.  Emerson,  the  sum  of  two  hundred  and  three 
dollars  and  seventy-eight  cents,  which  I  promise  to  pay  to  him  or  or- 
der, in  six  months  from  date,  with  interest.  When  the  above  sum  of 
two  hundred  and  three  dollars  and  seventy-eight  cents  is  paid,  four 
notes  of  fifty  dollars  each,  signed  by  W.  Hatch,  running  to  L.  Goss, 
are  to  be  given  up  to  him.  [Signed]     Levi  Goss." 

And  on  the  same  day  the  defendant  gave  to  the  plaintiff  the  fol- 
lowing paper: 

"Hartford,  March  29th,  1848. 

"Received  of  Levi  Goss,  four  notes  of  fifty  dollars  each,  signed  by 
Wm.  Hatch,  which  I  agree  to  return  to  him  when  he  pays  a  note  of 
two  hundred  and  three  dollars  and  seventy-eight  cents,  signed  this  day, 
running  to  me.  [Signed]     D.  B.  Emerson." 

89  Ace:  Au  Sable  Kiver  Boom  Co.  v.  Sanborn,  36  Mich.  358  (1S77),  even 
though  the  lienor  still  had  possession  of  the  property  at  the  dishonor  of  the 
notes. 

A  shipowner  took  two  notes  in  payment  of  freight.  One  matured  before 
the  vessel  reached  her  destination:  the  other,  after.  Before  the  maturity  of 
either  the  maker  became  bankrupt.  Held,  since  the  mere  acceptance  of  a  note 
does  not  Operate  as  a  payment,  the  lien  is  lost  only  as  to  the  amount  covered 
by  the  second  note.  The  Bird  of  Paradise,  5  Wall.  545,  IS  L.  Ed.  CC2  (1S6G). 
Compare  Stevenson  v.  Blakelock,  1  M.  &  S.  535  (1813). 

As  to  the  effec-t  on  the  lien  of  the  taking  of  a  demand  note,  see  In  re  Tav- 
lor  [1S91]  1  Ch.  590;  Hutchins  v.  Olcutt,  4  Vt.  54'J,  24  Am.  Dec.  634  (1832). 
See,  also,  Angus  v.  McLachlan,  23  Ch.  Div.  330  (ISSo) ;  In  re  Douglas,  Norman 
&  Co.  [ISas]  1  Ch.  199. 


120  .     POSSESSORY   INTERESTS  IN   CHATTELS  (Ch.  3 

It  was  admitted  that  the  note  referred  to  in  the  last  receipt  was  the 
above  paper  signed  by  said  Goss.  It  appeared  that  when  the  above 
papers  were  signed  by  the  parties,  the  four  notes  were  put  into  the 
hands  of  the  defendant,  that  they  were  negotiable,  and  of  the  descrip- 
tion set  forth  in  the  plaintiff's  writ,  and  that  the  plaintiff  did  not  in- 
dorse  them,  when  he  passed  them  to  the  defendant.     *     *     * 

On  the  next  day,  or  day  after,  the  defendant  passed  the  note  or  ac- 
countable paper,  signed  by  the  plaintiff,  to  one  Kingsbury,  who  paid 
him  the  amount  due  on  the  same,  and  also  at  the  same  time  delivered 
to  him  the  four  notes,  with  the  understanding  between  himself  and 
Kingsbury,  that  he  should  hold  the  notes  as  security  for  the  $203.78, 
in  the  same  manner  as  Emerson  had.  Witliin  three  or  four  days  there- 
after, Kingsbury  went  to  Hatch  and  arranged  with  him  to  take  up 
the  four  notes  and  give  four  others  of  the  same  amount  and  dates, 
payable  to  Kingsbury  or  bearer.  This  was  done,  and  Hatch  then  took 
up  the  notes  for  which  this  suit  was  instituted,  and  canceled  the  same, 
and  gave  four,  payable  to  Kingsbury  or  bearer.  These  last  notes 
Kingsbury  immediately  passed  to  one  Tenny  and  received  the  cash 
therefor.  The  transactions  of  Kingsbury  with  Hatch  and  Tenny  were 
not  known  to  Emerson  till  after  they  were  completed. 

The  plaintiff  did  not  know  of  the  transfer  of  the  notes  to  Kingsbury, 
nor  of  anything  which  Emerson,  Kingsbury,  Tenny  or  Hatch  did  till 
long  afterwards,  nor  did  he  in  any  way,  at  any  time,  assent  to  what 
was  done. 

On  the  29th  of  September,  1848,  the  plaintiff  obtained  in  gold  and 
silver,  mostly  gold,  what  was  paid  to  him  as  $210,  by  the  bank  at 
Lebanon.  On  that  day  he  subsequently  demanded  of  the  defcmlant 
the  four  notes,  stating  at  tlie  time  that  he  had  the  money  with  him  to 
pay  the  note  of  $203.78  and  interest,  which  was  the  fact.  The  note 
of  $203.78,  then  amounted  to  $209.90.  Before  they  separated,  the 
plaintiff  made  to  the  defendant  a  tender  of  the  money  received  from 
the  bank,  which  the  defendant  declined  to  receive.     *     *     * 

PerlEy,  J.*"     The  note  given  by   the  plaintiff  to  the  defendant, 

March  29,   1848,  was  negotiable.     It  was  an  absolute  undertaking  to 

pay  $203.78,  to  the  plaintiff  or  order,  in  six  months  with   interest. 
*     *     * 

The  four  notes  for  which  this  suit  was  brought,  were  delivered  to 
[sic]  the  plaintiff,  in  pledge,  to  secure  payment  of  the  plaintiff's  note. 
By  the  written  agreement  of  tlie  defendant,  the  plaintiff'  was  to  have 
these  notes  back  when  he  paid  his  note  of  $203.78,  and  interest,  to 
the  defendant  or  his  indorsee,  according  to  the  tenor  of  the  note.  The 
plaintiff',  by  the  obvious  construction  of  the  contract,  was  to  make 
payment  to  the  holder  of  the  note,  before  he  could  entitle  himself  to 
a  return  of  the  securities,  pledged  for  its  payment.     The  defendant 

»o  The  statement  of  facts  Is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  121 

did  not  agree  to  restore  the  pledge,  when  the  plaintiff  should  pay  him 
$203.78  and  interest,  but  when  he  should  pay  the  note ;  and  payment 
of  the  money  to  the  defendant,  after  the  note  was  indorsed,  would  not 
pay  the  note.  The  note  could  only  be  paid  to  the  holder.  The  tender, 
therefore,  to  be  available  should  have  been  made  to  the  holder ;  but 
the  tender  was  made  in  this  case  to  the  defendant,  after  he  had  in- 
dorsed and  transferred  the  note,  and  when  he  had  no  right  to  the  money 
due  on  it. 

It  is,  therefore,  unnecessary  to  consider  whether  the  tender  stated 
in  this  case  would  have  been  sufficient,  if  it  had  been  made  to  the 
proper  party.     *     *     * 

The  general  property  in  the  four  notes  pledged,  remained  in  the 
plaintiff;  but  the  defendant  took  them  in  pawn  for  the  payment  of 
his  debt,  and  thus  gave  him  an  interest  in  them,  which,  whether  his 
debt  were  negotiable  or  not,  he  could  lawfully  transfer  to  a  third  per- 
son. He  might  assign  all  his  interest  in  the  pledge  ;  or  he  might  assign 
it  conditionally,  to  secure  payment  of  his  own  debt;  or  he  might  de- 
liver it  to  a  bailee,  without  consideration,  to  hold  as  a  deposit  for  him. 
The  transfer  of  the  notes  in  any  one  of  these  ways  would  be  a  legal 
disposition  of  them,  authorized  by  the  nature  of  the  defendant's  in- 
terest as  pawnee.     *     *     * 

\\'here  the  pledge  has  been  merely  bailed  to  a  third  person,  and 
the  whole  interest  remains  in  the  original  pawnee,  payment  or  tender 
may  be  made  to  him,  and  after  tender  to  the  pawnee,  the  bailee  on 
demand  will  be  liable  in  trover.     Ratcliffe  v.  Davis,  Yelverton,  178. 

But  where  the  interest  is  assigned  with  the  thing  pledged,  tender 
should  be  made  to  the  assignee.  Demainbry  v.  Metcalfe,  2  Vernon, 
690.     *     *     * 

The  legal  nature  of  the  defendant's  interest  in  the  four  notes,  gave 
him  the  right  to  transfer  tliem  to  Kingsbury  with  the  negotiable  debt, 
which  they  were  pledged  to  secure.  Of  course  he  cannot  be  charged 
with  a  wrongful  conversion,  by  assigning  the  notes  to  Kingsbury. 

If  the  act  of  Kingsbury  in  delivering  up  the  notes  to  the  maker  was 
a  conversion,  it  was  not  the  act  of  tlie  defendant.  He  had  legally 
parted  with  his  possession  and  all  his  interest.  Kingsbury  was  sub- 
stituted in  his  place  as  the  lawful  holder  of  the  securities,  and  the  de- 
fendant cannot  be  charged  with  the  wrongful  act  of  another,  over 
which  he  had  no  control.  A  mortgagee  might  as  well  be  held  liable 
for  the  destruction  of  the  mortgaged  property,  after  he  had  parted 
with  all  his  interest  by  a  valid  assignment.     *     *     * 

The  case  shews  no  conversion  of  the  notes  by  the  defendant ;  and 
the  verdict  must  be  set  aside,  and  judgment  entered  for  the  defend- 
ant.'i 

«iAcc.:  Bank  of  Forsyth  v.  Davis,  113  Ga.  341,  38  S.  E.  836,  84  Am.  St. 
Rep.  24S  (1901) :  Waddle  v.  Owen,  43  Neb.  4S9,  61  N.  TV.  731  (1895).  See  Mores 
V.  Conham,  Owen  123  (1609). 


122  POSSESSORY   INTERESTS  IN  CHATTELS  (Ch.  3 

HOPPER  V.  SMITH. 
(Supreme  Court  of  New  York,  1SS2.    63  How.  Prac.  34.) 

[March  10,  1874,  the  plaintiff  dehvered  a  receiver's  certificato  to  the 
defendant  as  collateral  for  a  debt  due  the  defendant,  apparently  on  de- 
mand. The  defendant  sold  the  certificate  in  1878.  In  1879  the  plain- 
tiff tendered  the  amount  of  the  debt,  demanded  the  certilicate  and  on 
the  defendant's  refusal  brought  trover.  Judgment  was  rendered  for 
the  plaintiff  for  the  value  of  the  certificate  at  the  time  of  the  refusal, 
less  the  debt.] 

Ru.MSEY,  J.°-  *  *  *  Outside  of  authority,  the  rule  that  a  sale 
by  the  pledgee  is  not  ipso  facto,  a  conversion  seems  to  be  good  sense. 
The  rights  of  the  parties  are  based  upon  the  contract.  The  sale  by  the 
pledgee  is  wrongfid.  If  that  sale  in  and  of  itself  determines  the  con- 
tract without  more,  then  the  pledgee,  by  his  wrongful  act,  may  rescind 
his  contract  in  spite  of  the  wish  of  the  other  party  to  it.  I  am  not 
aware  of  any  other  case  in  which  this  can  be  done,  and  I  can  conceive 
of  no  reason  for  permitting  it  in  this  case.  It  may  be  for  the  interest  of 
the  pledgor  to  keep  his  contract  alive,  and,  if  it  is  so,  I  cannot  see  why 
he  may  not  do  it.  The  maxim  that  no  one  shall  take  any  advantage  by 
his  own  wrongful  act,  may  fairly  apply  to  this  case,  and  we  may  hold 
that,  although  the  unlawful  sale  does  not  per  se  operate  as  a  conversion, 
yet  the  pledgor  may,  at  his  option  so  consider  it,  and  that  he  may  re- 
gard the  contract  as  at  an  end,  tender  or  offer  to  pay  his  debt  and  de- 
mand his  pledge,  or  may  sue  for  damages  for  the  sale.  I  think  the 
cases  sustain  that  rule,  and  that  it  reconciles  the  cases  which  otherwise 
appear  to  conflict,  but  do  not  in  fact.  Strong  v.  Nat.  Mich.  Bkg.  Ass'n, 
45  N.  Y.  718 ;  Bryan  v.  Baldwin,  52  N.  Y.  232.  I  do  not  think  that  the 
plaintiff  was  called  upon  to  notify  defendant  of  his  disaffirmance  of  the 
sale  at  the  time  defendant  told  him  of  it  at  the  depot.  There  is  no 
pretense  of  any  estoppel.  Nothing  has  occurred  to  give  defendant 
reason  to  believe  that  the  contract  was  waived,  and  he  took  no  action 
afterwards  on  the  strength  of  plaintiff's  silence.  As  long  as  the  con- 
tract was  in  force  both  parties  were  bound  by  it.  The  plaintiff  might 
rely  upon  it,  and  the  defendant  must  keep  ready  to  perform  it.  Nei- 
ther party  by  his  own  act  simply  could  free  himself  from  its  obliga- 
tions. The  sale  then  by  Ihe  defendant  in  March,  1878,  was  not  of  itself 
a  conversion,  and  did  not,  against  the  will  of  the  plaintiff,  create  a  cause 
of  action  in  his  favor  against  the  defendant  for  the  conversion  of  the 
certificate,  so  as  to  require  the  plaintiff's  damages  to  be  the  value  of 
the  certificate  at  that  time  with  interest.  On  the  contrary,  the  cause  of 
action  did  not  accrue  until  the  demand  and  refusal,  and  the  measure  of 
damages  is  the  value  at  that  time.     *     *     *  os 

»2  Part  of  the  opinion  is  omitted. 

"3  A.  pledged  certificates  of  stoclc  to  B.,  who  fraudulently  and  collusively 
sold  them  to  C,  who  held  for  B.    A.  brought  trover  against  B.  and  C.     Held 


Sec.  2)  BAILOR    AND    BAILEE  123 

BALTIMORE  MARINE  INS.  CO.  v.  DALRYAIPLE. 

(Court  of  Appeals  of  Maryland,  1SG6.     25  Md.  269.) 

[Dalrj'inple  deposited  with  the  insurance  company  770  shares  of  the 
stock  of  the  Baltimore  &  Ohio  Railroad  and  other  securities  as  col- 
lateral to  secure  a  loan  payable  on  demand.  The  loan  not  being  paid 
on  demand  the  insurance  company  on  November  21,  1860,  sold  the 
stock  at  private  sale.  December  17,  1862,  Dalrymple  tendered  the  in- 
surance company  the  amount  of  the  loan  with  interest  and  demanded 
a  return  of  the  stock  which  was  refused.  He  then  brought  action  for 
the  conversion  thereof  and  by  stipulation  it  was  agreed  that  he  might 
recover  as  on  any  count  in  tort  that  the  facts  would  justify.  Judgment 
below  was  for  the  plaintiff.    Both  parties  excepted.] 

Bartol,  ]."*  *  *  *  We  *  *  *  shall  proceed  to  consider 
the  other  questions  presented,  assuming  that  there  was  no  evidence  of 
such  acquiescence  on  the  part  of  the  plaintiff  as  to  defeat  this  ac- 
tion.    *     *     * 

The  questions  presented  for  our  decision  are:  1st.  As  to  the  plain- 
tiff's right  to  recover.  2d.  As  to  the  measure  of  damages.  3d.  As  to 
the  right  of  the  defendant  to  recoup  from  the  damages  the  amount  of 
the  loans. 

We  have  virtually  determined  the  first  question  in  the  case  of  Mary- 
land Fire  Insurance  Company  v.  Dalrj'mple  [25  Md.  242,  89  Am.  Dec. 
779] .  As  we  have  already  said  the  attempted  sale  and  purchase  by  the 
defendant  at  the  board  was  inoperative ;  the  possession  of  the  stock  re- 
maining unchanged,  the  bailment  continued  thereafter  as  before.  But 
notice  having  been  given  ur  '?r  the  contract,  and  the  plaintiff  being  in 
default,  the  power  to  sell  continued,  and  if  it  had  been  legally  exercis- 
ed no  action  of  tort  could  be  maintained.  But  according  to  the  rule 
laid  down  in  the  former  case,  the  defendant  had  not  the  legal  right  to 
dispose  of  the  stock  at  private  sale.  The  sale  so  made  to  Denison  on 
the  21st  of  November,  1860,  was  therefore  contrarj'  to  the  dut}'-  of  the 
defendant  as  pledgee  and  in  law  tortious,  for  which  the  plaintiff  is  en- 
titled to  maintain  his  action  either  in  trover  or  case. 

The  next  question  is,  what  is  the  measure  of  damages?  The  plain- 
tiff in  his  sixth  prayer  asked  for  an  instruction  to  the  jury  that  they 
might  in  their  discretion,  assess  the  value  of  the  stocks  at  their  highest 
market  value  on  the  day  of  trial,  or  on  any  other  day  before  that  time, 
and  after  the  day  of  the  demand  and  refusal. 

The  Court  rejected  that  prayer,  and  instructed  the  jury  that  "in  es- 
timating the  damages  they  were  bound  to  give  to  the  plaintiff  what  they 

A.  falls  because  he  made  no  tender.     Schaaf,  Adm'r,  t.  Fries  et  al.,  90  Mo. 
App.  Ill  (1901). 

»*  Part  of  the  opinion  is  omitted. 


124  POSSESSORY   II^TERESTS   IN   CHATTELS  (Cll.  3 

might  find  from  the  evidence  to  have  been  the  marl<:et  value  of  the 
seven  hundred  and  seventy  shares  of  stock  on  the  17th  of  December, 
18G2,  with  interest  thereon,  deducting  tlierefrom  the  sum  loaned  and 
interest." 

After  a  mature  consideration  of  this  question  and  a  careful  examina- 
tion of  all  the  authorities  cited  in  argument,  we  are  of  opinion  that  this 
instruction  was  erroneous,  and  we  consitler  the  proposition  contained 
in  the  plaintiff's  sixth  prayer  as  still  more  untenable.  The  tort  com- 
plained of  here,  and  which  is  the  ground  of  this  action,  was  committed 
on  the  21st  of  November,  1860,  by  the  sale  and  transfer  of  the  stock 
to  Denison.  The  plaintiff,  well  knowing  the  fact,  lay  by  until  Decem- 
ber, 1862,  when  he  made  the  tender  and  demand,  long  after  the  stock 
had  been  parted  with,  and  when  it  was  no  longer  in  the  defendant's 
lX)\ver  to  return  it,  and  then  assuming  to  treat  the  refusal  to  comply 
with  the  demand  as  the  tortious  act,  attempts  to  make  it  the  ground  of 
his  action.  This  is  not  only  contrary  to  reason,  but  in  direct  opposition 
to  the  well  settled  principles  of  the  law. 

The  sole  object  and  design  of  tlie  law  in  awarding  damages  to  a 
plaintiff,  is  to  compensate  him  for  the  injury  he  has  actually  suffered, 
from  the  wrongful  act  of  the  defendant.  We  leave  out  of  view  that 
class  of  cases  in  which,  by  reason  of  the  bad  faith  or  moral  turpitude 
of  the  act  complained  of,  exemplary  or  punitive  damages  by  way  of 
smart  money,  are  allowed.  This  is  not  a  case  of  that  kind.  The  tor- 
tious act  of  the  defendant  was  in  the  breach  of  legal  duty  arising  out  of 
the    contract,    and    the   damages    ought    to    be    compensatory    mere- 

On  what  ground  can  the  plaintiff'  claim  compensation  on  the  basis 
of  the  value  of  the  stock  in  December,  1862  ?  There  was  no  tort  com- 
mitted at  that  time  by  the  defendant,  nor  did  the  tender,  demand  and 
refusal  operate  to  give  him  a  cause  of  action.  They  were  merely  nu- 
gatory. It  is  settled  that  if  there  has  been  a  wrongful  sale  of  the 
pledge,  no  tender  of  the  debt  due  need  be  made  before  bringing  an  ac- 
tion therefor.  Story  on  Bailments,  §  349;  Stearns  v.  Marsh,  4  Denio 
(N.  Y.)  227,  47  Am.  Dec.  248 ;  Fenn  v.  Eittleson,  8  Eng.  L.  &  E.  Rep. 
483  ;  Edwards  and  Others,  Assignees,  v.  Hooper  and  Another,  11  Mees. 
&  Wels.  362.  In  the  case  last  cited  the  plaintiff's  assignees  in  bank- 
ruptcy relied  on  a  demand  and  refusal  as  the  ground  of  their  action, 
the  conversion  having  taken  place  before  the  fiat  in  bankruptcy,  it  was 
held  tlie  suit  could  not  be  maintained.  Parke,  Baron,  said:  "If  the 
goods  were  in  possession  of  the  defendants,  a  demand  and  refusal 
would  be  evidence  of  a  conversion.  But  it  is  not  so  in  a  case  where 
the  goods  have  been  previously  parted  with  by  sale.  There  cannot  be 
an  effectual  demand  and  refusal  unless  the  party  has  at  the  time  pos- 
session of  the  goods  and  has  the  means  of  delivering  them  up."  *  *  * 

It  follows  from  these  authorities  that  the  demand  and  refusal  in  this 


Sec.  2)  BAILOR   AND   BAILEE  125 

case  could  have  no  effect  either  in  giving  to  the  plaintiff  a  right  of  ac- 
tion, or  to  fix  the  measure  of  damages.*^ 

Treating  this  case  as  an  action  of  trover,  we  consider  the  rule  well 
established,  that  the  proper  measure  of  damages  is  the  actual  value  of 
the  stock  at  the  time  of  the  conversion, ^°  deducting  of  course  the 
amount  of  the  debt  due  the  defendant  by  way  of  recoupment,  of  which 
we  shall  speak  presently.     *     *     * 

We  consider  it  perfectly  clear,  that  the  view  taken  by  the  court  be- 
low on  the  question  of  recoupment  was  correct;  and  that  in  ascertain- 
ing the  damages,  the  amount  of  the  debt  due  the  defendant,  to  secure 
which,  the  stock  and  other  collaterals  were  pledged,  ought  to  be  deduct- 
ed."' The  law  is  so  expressly  stated  by  Story  in  his  work  on  Bail- 
ments, §§  315,  349.  It  is  supported  by  the  authorities  cited  by  him,  and 
is  consistent  with  the  general  doctrine  of  recoupment,  established  in 
modern  cases,  and  recognized  by  this  Court  in  Abbott  v.  Gatch,  13  Md. 
314,  71  Am.  Dec.  635.    See,  also,  Stewart  v.  Rogers,  19  Md.  117,  118. 

0  5  A.  executed  his  note  to  B.  and  pledged  shares  of  stock  as  collateral.  B. 
wrongfully  repledged  the  stock  to  C.,  who  in  turn  sold  it.  B.  was  subse- 
quently adjudged  a  bankrupt.  Thereafter,  on  the  maturity  of  the  note,  A. 
tendered  B.  the  amount  due  and  demanded  a  return  of  the  collateral.  Held. 
A.'s  claim  arose  prior  to  the  bankruptcy  proceedings,  although  not  then 
liquidated,  aud  is  consequently  barred  bv  the  discharge  in  bankruptcy.  Wood 
V.  Fisk,  215  X.  Y.  23.3.  109  N.  E.  177  (1915).  See  Walley  v.  Deseret  Xat. 
Bank,  14  Utah,  305,  47  Pac.  147  (1896). 

90  "To  allow  merely  the  value  [of  stocks]  at  the  time  of  conversion  would. 
In  most  cases,  afford  a  very  inadequate  remedy,  and,  in  the  case  of  a  broker, 
holding  the  stocks  of  his  principal,  it  would  afford  no  remedy  at  all.  The  ef- 
fect would  be  to  give  to  the  broker  the  control  of  the  stock,  subject  only  to 
nominal  damages.  The  real  injury  sustained  by  the  principal  consists,  not 
merely  in  the  assumption  of  control  over  the  stock,  but  in  the  sale  of  it  at 
an  unfavorable  time  and  for  an  unfavorable  price.  Other  goods  wrongfully 
converted  are  generally  supposed  to  have  a  fixed  market  value,  at  which  they 
can  be  replaced  at  any  time ;  and  hence,  with  regard  to  them,  the  ordinary 
measure  of  damages  is  their  value  at  the  time  of  conversion,  or,  in  case  of 
sale  and  purchase,  at  the  time  fixed  for  their  delivery.  But  the  application 
of  this  rule  to  stocks  would,  as  before  said,  be  very  inadequate  aud  unjust. 
*  *  *  The  English  cases  usually  referred  to  are  Cud  v.  Kutter.  1  P.  Wms. 
572  (4th  Ed.,  London,  1777)  note  (3) ;  Owen  v.  Routh,  14  C.  B.  327 ;  Loder  v. 
Kekule,  3  C.  B.  (N.  S.)  128 ;  France  v.  Gaudet,  L.  R.  6  Q.  B.  199.  It  is  laid 
down  iu  these  cases  that,  where  there  has  been  a  loan  of  stock  and  a  breach 
of  the  agreement  to  replace  it,  the  measure  of  damages  will  be  the  value  of 
the  stock  at  its  highest  price  on  or  before  the  day  of  the  trial.  *  *  » 
The  hardship  which  arose  from  estimating  the  damages  by  the  highest  price 
up  to  the  time  of  trial,  which  might  be  years  after  the  transaction  occurred, 
was  often  so  great  that  the  Court  of  Appeals  of  New  York  was  constrained  to 
introduce  a  material  modification  in  the  form  of  the  rule,  and  to  hold  the 
true  and  just  measure  of  damages  in  these  cases  to  be  the  highest  inter- 
mediate value  of  the  stock  between  the  time  of  its  conversion  and  a  reason- 
able time  after  the  owner  has  received  notice  of  it  to  enable  him  to  replace 
the  stock.  »  «  *  On  the  whole  it  seems  to  us  that  the  new  York  rule,  as 
finally  settled  by  the  Court  of  Appeals,  has  the  most  reasons  in  its  favor,  and 
we  adopt  it  as  a  correct  view  of  the  law."  Galigher  v.  Jones,  129  U.  S.  193, 
9  Sup.  Ct.  335,  32  L.  Ed.  658  (1S89). 

9'  Ace:  Rosenzweig  v.  Frazer,  82  Ind.  342  (1882) ;  Neller  v.  Kelley,  69  Pa. 
403  (1871). 


126  POSSESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

In  such  a  case  as  this,  the  appHcation  of  this  doctrine  does  not  rest 
upon  the  principle  of  lien,  and  the  cases  of  that  description  cited  in 
argument  by  the  plaintiff's  counsel  are,  in  our  opinion,  inapplica- 
ble.    *     *     * 

[Judgment  reversed  with  leave  to  the  plaintiff  to  take  out  a  proce- 
dendo.] 


HALLIDAY  v.  HOLGATE. 

(Court  of  Exchequer  Chamber,  1868.    L.  R.  3  Exch.  290.) 

Appeal  from  tlie  judgment  of  the  Court  of  Exchequer,  discharging 
a  rule  to  enter  a  verdict  for  the  plaintiff  in  an  action  of  trover  brought 
by  the  creditors'  assignee  of  one  Bentley  against  the  defendant  to  re- 
cover the  value  of  certain  shares,  the  defendant  pleading,  amongst  oth- 
er pleas,  not  possessed. 

On  the  30th  of  April,  1866,  Bendey  bought  of  one  Scholefield  fifteen 
shares  in  the  Whitewell  Mining  Company,  Limited,  which,  by  the  ar- 
ticles of  association  of  the  company,  were  not  transferable  till  the  2d 
of  January,  1867,  and  Scholefield  at  the  same  time,  by  a  memorandum 
in  writing,  agreed  to  execute  a  transfer  of  the  shares  to  Bentley  as 
soon  as  he  legally  could.  Bentley  at  the  same  time  bought  ten  other 
shares  in  the  same  company,  and  took  a  similar  memorandum. 

In  June,  1866,  Bentley  borrowed  of  the  defendant  £350.  on  his  own 
promissory  note  payable  on  demand,  and  on  the  security  of  the  twenty- 
five  shares  above  mentioned,  and  he  at  the  same  time  handed  to  the 
defendant  the  two  agreements,  promising  to  deliver  to  him  the  scrip 
as  soon  as  he  received  it.  On  the  16th  of  January,  1867,  Bentley  hand- 
ed to  the  defendant  the  fifteen  scrip  certificates  for  the  first  fifteen 
shares,  and  received  back  the  agreement  relating  to  the  ten  shares,  on 
paying  £100.  on  account  of  the  debt. 

On  the  same  day  Bentley's  firm  stopped  payment ;  they  were  after- 
wards adjudicated  bankrupts,  and  the  plaintiff  was  appointed  creditors' 
assignee,  Bentley  absconding  before  passing  his  final  examination.  The 
defendant,  after  the  bankruptcy,  sold  the  scrip  of  ten  of  the  fifteen 
shares,  but  it  did  not  appear  that  he  had  made  any  demand  on,  or  given 
notice  to,  either  Bentley  or  the  plaintiff,  the  assignee.  The  value  of  the 
scrip  for  the  ten  shares  was  admitted  to  be  i200.     *     *     * 

WiLLES,  J.®*  *  *  *  fhg  assignee  seeks  to  recover  either  the 
whole  value  or  nominal  damages  in  respect  of  the  wrong  done  by  the 
sale.  As  to  the  claim  for  the  whole  value,  it  is  certainly  a  strong  con- 
tention. The  scrip  certificates  were  in  the  hands  of  the  defendant  as  a 
security  for  money  due,  and  the  assignee  has  sustained  no  actual  dam- 
age, for  the  debt  could  have  been  paid  no  otherwise,  yet  the  assignee 
seeks  to  recover  the  whole  value  as  if  at  the  time  the  certificates  wert 

•8  Ttie  statement  of  facts  Is  abridged  and  part   of  the  orinion  is  omitted. 


Sec.  2)  BAILOR   AND    BAILEE  127 

his  own.  It  does  not  require  much  argument  to  shew  that  there  is  no 
principle  for  such  a  rule,  and  we  should  not  be  disposed  to  act  upon  it 
unless  we  are  compelled  by  some  authority  to  do  so.  But  the  authori- 
ties invite  us  to  do  the  reverse,  for  Johnson  v.  Stear,  15  C.  B.  (N.  S.) 
330,  shews  that  if  any  action  lies  at  all  in  such  a  case,  the  verdict  can 
only  be  for  nominal  damages,  and  that  an  allowance  must  be  made  for 
the  amount  of  the  debt  which  has  been  thus  satisfied,  that  being  the 
amount  which  the  pledgor  or  his  assignee  would  have  had  to  pay  be- 
fore he  could  have  required  the  article  to  be  delivered  up.  We  are 
quite  satisfied  to  abide  by  that  decision. 

But  it  has  been  argued  that  the  plaintiff  is  at  any  rate  entitled  to 
nominal  damages,  for  that  a  conversation  was  committed  by  the  sale 
of  the  certificates.  That  sale,  it  is  contended,  had  the  effect  of  putting 
an  end  to  the  bailment  of  pledge ;  the  property  of  the  pledgee  was 
thereby  determined,  so  as  to  enable  the  assignee  to  say  that  at  the  mo- 
ment when  the  sale  took  place  he  became  entitled  to  the  certificates  by 
virtue  of  the  general  property  which  then  revested  in  him.  This 
reasoning  proceeds  upon  a  somewhat  subtle  and  narrow  ground,  for  it 
is  admitted  that  the  assignee  could  only  claim  nominal  damages.  But 
we  cannot  arrive  at  the  conclusion  that  he  is  so  entitled  without  getting 
rid  of  the  case  of  Donald  v.  Suckling,  L.  R.  1  Q.  B.  585 ;  and  so  far 
from  feeling  disposed  to  overrule  that  case,  we  are  satisfied  of  its  good 
sense,  and  think  that  it  puts  the  whole  matter  on  a  plain  and  intelligible 
footing.  There  are  three  kinds  of  security :  the  first,  a  simple  lien ; 
the  second,  a  mortgage,  passing  the  property  out  and  out ;  the  third,  a 
security  intermediate  between  a  lien  and  a  mortgage — viz.,  a  pledge — 
where  by  contract  a  deposit  of  goods  is  made  a  security  for  a  debt, 
and  the  right  to  the  property  vests  in  the  pledgee  so  far  as  is  necessary 
to  secure  the  debt.  It  is  true  the  pledgor  has  such  a  property  in  the 
article  pledged  as  he  can  convey  to  a  third  person,  but  he  has  no  right 
to  the  goods  without  paying  off  the  debt,  and  until  the  debt  is  paid  off 
the  pledgee  has  the  whole  present  interest.  If  he  deals  with  it  in  a 
manner  other  than  is  allowed  by  law  for  the  payment  of  his  debt,  then, 
in  so  far  as  by  disposing  of  the  reversionary  interest  of  the  pledgor  he 
causes  to  the  pledgor  any  difficulty  in  obtaining  possession  of  the  pledge 
on  payment  of  the  sum  du,e,  and  thereby  does  him  any  real  damage,  he 
commits  a  legal  wrong  against  the  pledgor.  But  it  is  a  contradiction 
in  fact,  and  would  be  to  call  a  thing  that  which  it  is  not,  to  say  that 
the  pledgee  consents  by  his  act  to  revest  in  the  pledgor  the  immediate 
interest  or  right  in  the  pledge,  which  by  the  bargain  is  out  of  the  pledg- 
or and  in  the  pledgee.  Therefore,  for  any  such  wrong  an  action  of 
trover  or  of  detinue,  each  of  which  assumes  an  immediate  right  to 
possession  in  the  plaintiff,  is  not  maintainable,  for  that  right  clearly 
is  not  in  the  plaintiff.    The  judgment  must,  therefore,  be  affirmed. °° 

09  Ace:  Whipple  v.  Dutton,  175  Mass.  365,  56  N.  E.  581,  78  Am.  St.  Rep 
501  (1900). 


128  POSSESSORY   INTERESTS   IN  CHATTELS  (Ch.  3 


MINOR  V.  BEVERIDGE. 

(Court  of  Appeals  of  New  York,  1894.    141  N.  Y.  399,  36  N.  B.  404,  38  Am. 

St.  Rep.  804.) 

BartletT,  J.  The  plaintiff,  as  assignee  for  the  benefit  of  creditors 
of  P.  W.  Gallaudet  &  Co.,  stock  brokers,  sued  the  defendant  to  re- 
cover a  balance  alleged  to  be  due  from  her  on  a  speculative  account 
which  she  had  with  Gallaudet  &  Co.  at  the  time  of  their  failure,  No- 
vember 10,  1890.  The  cause  was  brought  on  for  trial  at  a  circuit 
court  in  the  city  of  New  York,  and  at  the  close  of  plaintiff's  case  the 
complaint  was  dismissed,  and  the  exceptions  ordered  to  be  heard,  in 
the  first  instance,  at  the  general  term.  The  general  term  overruled 
the  exceptions,  and  ordered  judgment  for  defendant,  dismissing  com- 
plaint, with  costs.    The  plaintiff  appeals  from  that  judgment. 

The  question  presented  is  whether  the  trial  judge  was  justified  in 
taking  the  case  from  the  jury.  The  defendant's  contention  is  that  P. 
W.  Gallaudet  &  Co.  sold  the  stocks  held  in  her  account  without  no- 
tice, and  for  that  reason  their  assignee  cannot  recover.  The  plain- 
tiff insists  that  demand  and  notice  were  duly  given  to  defendant 
through  her  son,  as  her  agent,  before  sale  of  the  stocks,  and  that  she 
is  bound  thereby  and,  even  if  there  was  a  sale  without  notice,  the  de- 
fendant can  only  be  allowed  her  actual  damages  in  reduction  of  plain- 
tiff's claim.  The  evidence  shows  that  Alven  Beveridge,  the  son  of 
the  defendant,  was  the  son-in-law  of  P.  W.  Gallaudet,  and  from  the 
year  1881  to  November  10,  1890,  the  day  when  the  firm  of  P.  W. 
Gallaudet  &  Co.  failed,  was  a  clerk  of  said  firm ;  that  on  the  30th  of 
May,  1881,  the  defendant,  represented  by  her  son,  opened  a  specula- 
tive account  with  the  firm,  which,  with  additions  and  charges  made 
therein,  remained  open  until  the  day  of  the  failure.  Our  examination 
of  the  record  satisfies  us  there  is  a  conflict  of  evidence  as  to  whether 
or  not  Alven  Beveridge  was  the  agent  and  representative  of  his  mother, 
and  accustomed,  for  the  nine  years  and  more  covered  by  her  account, 
to  receive  the  statements,  demands,  and  notices  to  which  she  was  en- 
titled, including  the  demand  and  notice  in  this  action.  We  are  of  opin- 
ion that  the  trial  judge  erred  in  not  submitting  to  the  jury,  as  re- 
quested, the  question  of  notice,  and  whether  it  was  reasonable  and  le- 
gal under  the  circumstances. 

The  plaintiff's  counsel  insists  that  he  was  entitled  to  submit  still  an- 
other question  to  tlie  jury.  There  was  evidence  in  the  case  tending  to 
show  that  the  stocks  sold  for  defendant's  account  on  the  10th  day  of 
November,  1890,  could  have  been  repurchased  in  the  open  market, 
within  the  next  15  days,  below  the  prices  realized  upon  the  sale.  The 
plaintiff's  counsel  asked  to  go  to  the  jury  as  to  whether  the  defend- 
ant sustained  loss  by  reason  of  said  sale,  and  as  to  whether  the  de- 
fendant could  not  have  replaced  the  stocks  at  the  same  price,  or  less 


Sec.  2)  BAILOR    AND    BAILEE  129 

price,  than  that  for  which  they  were  sold,  and  within  a  reasonable  time 
after  the  sale.  This  request  was  refused.  We  think  the  trial  judge 
should  have  submitted  these  questions  to  the  jury,  under  the  settled 
law  of  this  court  that  even  where  a  stock  broker  sells,  without  due 
notice,  stock  purchased  by  him  for  a  customer  on  a  margin,  and  held 
in  pledge  to  secure  the  advance  made  by  him  for  the  purchase,  he  does 
not  thereby,  as  matter  of  law,  extinguish  all  claim  against  the  cus- 
tomer for  the  advance,  but  the  customer  is  entitled  to  be  allowed  as 
damages  the  difference  between  the  price  for  which  the  stock  sold, 
and  for  which  he  received  credit,  and  its  market  price  then,  or  within 
such  reasonable  time  after  notice  of  sale  as  would  have  enabled  him 
to  replace  the  stock  in  case  the  market  price  exceeded  the  price  real- 
ized. Grumann  v.  Smith,  81  N.  Y.  25 ;  Capron  v.  Thompson,  86  N. 
Y.  418-420;  Colt  v.  Owens,  90  N.  Y.  368-371;  Porter  v.  Wormser, 
94  N.  Y.  431-446;  Wright  v.  Bank,  110  N.  Y.  237-246,  18  N.  E.  79, 
1  L.  R.  A.  289,  6  Am.  St.  Rep.  356. 

The  defendant's  counsel  relies  on  Gillett  v.  Whiting,  120  N.  Y.  402, 
24  N.  E.  790,  decided  by  the  second  division  of  this  court  in  June, 
1890,  as  sustaining  this  last  ruling  of  the  trial  judge.  We  are  of  opin- 
ion that  the  jxiint  actually  decided  in  that  case  does  not  affect  the  cases 
in  this  court  to  which  we  have  already  referred.  In  Gillett  v.  Whiting 
the  plaintiffs  were  stock  brokers,  and  brought  the  action  to  recover 
a  balance  alleged  to  be  due  on  account  of  stock  transactions  between 
the  parties.  In  submitting  the  case  to  the  jury  the  defendant's  coun- 
sel requested  the  court  to  charge  that,  in  case  the  plaintiffs  sold  the 
stock  without  notice  to  the  defendant  as  to  the  time  and  place  of  sale, 
by  doing  so  they  violated  their  duty  to  the  defendant,  and  converted 
the  stock  to  their  own  use.  The  court  refused  to  so  charge,  the  de- 
fendant excepted,  and  the  jury  found  a  verdict  for  the  plaintiff'.  The 
sole  question  presented  on  the  appeal  was  defendant's  right  to  have 
the  jury  charged  that  a  sale  of  his  stocks  by  the  broker  without  no- 
tice was  a  conversion.  The  second  division  of  this  court  very  prop- 
erly held  that  the  judge  should  have  so  charged  the  jury,  and  reversed 
the  judgment.  The  effect  of  the  conversion,  if  found  by  the  jury, 
was  not  presented  on  the  appeal.  The  remarks,  therefore,  of  the  court, 
as  to  the  effect  upon  plaintiff's  course  of  action  if  conversion  of  the 
stocks-  should  be  established,  were  obiter. 

The  cases  we  have  cited  were  neither  referred  to  in  the  briefs  of 
counsel  nor  the  opinion  of  the  court.  The  judgment  appealed  from 
is  reversed,  and  a  new  trial  granted,  with  costs  to  abide  event.  All 
concur.     Judgment  reversed.^"" 

100  Ace:  Bulkeley  v.  Welch,  31  Conn.  339  (1863);  Richardson  v.  Ashby, 
132  Mo.  23S,  33  S.  W.  SOG  (1S96) ;  Dlmock  v.  United  States  Xat.  Bank,  o5  N. 
J.  T>aw,  296,  25  Atl.  926,  39  Am.  St.  Rep.  643  (1S93). 

See  Potter  v.  Tyler,  2  Mete.  (Mass.)  58  (1840) ;  Rush  v.  First  Nat.  Bank,  71 
Fed.  102,  17  C.  C.  A.  627  (1S95). 

In  general,  as  to  the  right  of  the  pledgee  to  sell  the  pledge  in  due  course, 
Biq.Pees.Pkop. — ^9 


130  POSSESSORY   INTERESTS  IN   CHATTELS  (Ch.  3 


SPROUL  V.  SLOAN. 

(Supreme  Court  of  renusylvauia,  1913.     241  Pa.  2S-1,  88  Atl.  501,  Ann.  Cas. 

lOluC,  941.) 

Brown,  J.  Henry  Sproul  &  Co.,  stockbrokers,  who  were  engaged 
in  business  in  the  city  of  Pittsburgh,  purchased  for  John  Sloan,  the  ap- 
pellee, in  May,  June,  and  August,  1907,  1,500  shares  of  the  capital 
stock  of  the  United  Copper  Company.  This  stock  was  purchased  at 
prices  varying  from  $61.50  to  $54  per  share,  and  the  brokers  agreed  to 
carry  it  for  appellee  on  a  margin  of  $20  per  share,  which  he  deposited 
with  them.  As  this  stock  was  purchased  from  time  to  time,  the  brokers 
mingled  it  with  other  securities  under  their  control  and  pledged  them 
to  a  trust  company  and  bankers  as  collateral  for  indebtedness  of  their 
own  amounting  to  more  than  a  million  and  a  half  dollars.  This  was 
without  the  authority  or  knowledge  of  Sloan.  In  April,  1908,  Sproul 
&  Co.  sold,  at  $6.25  per  share,  the  stock  which  they  had  purchased 
for  the  appellee,  but  which  he  refused  to  pay  for  and  take  off  their 
hands;  and,  after  crediting  him  with  the  proceeds,  the  margins  de- 
posited, and  the  dividends  received  on  the  stock,  this  suit  was  brought 
to  recover  the  balance  alleged  to  be  due,  amounting  to  $34,214.51,  with 
interest  from  the  date  of  the  sale  of  the  stock. 

A  verdict  was  directed  for  the  defendant,  for  the  reason,  as  stated 
in  the  opinion  of  the  court  denying  a  new  trial  and  judgment  for  the 
plaintiffs  n.  o.  v.,  tliat,  as  Sproul  &  Co.  had  converted  to  their  own 
use  the  stock  purchased  for  the  appellee  by  hypothecating  it  for  their 
own  indebtedness,  they  had  broken  their  contract  with  him  and  were 
in  no  position  to  demand  performance  by  him.  As  an  authority  for 
so  holding,  the  learned  trial  judge  cited  and  relied  upon  Gillett  v. 
Whiting,  120  N.  Y.  402,  24  N.  E.  790.  What  was  there  said  sus- 
tained him,  though  it  was  overlooked  that  subsequently  the  Court  of 
Appeals  held  that  the  remarks  in  that  case,  as  to  the  effect  of  a  broker's 
conversion  of  his  customer's  securities  upon  his  claim  against  the  lat- 
ter, were  upon  a  question  which  was  not  before  the  court  and  were 
therefore  to  be  regarded  as  mere  obiter  dicta,  in  conflict  with  the  set- 
tled law  of  the  state.  Minor  v.  Beveridge,  141  N.  Y.  399,  36  N.  E. 
404,  38  Am.  St.  Rep.  804.  It  is  not  necessary  for  us  to  review  the 
New  York  cases  cited  by  counsel  for  appellant  in  support  of  their  con- 
tention that  the  plaintiff  below  ought  to  have  recovered,  for  we  are 
of  opinion  that  the  view  entertained  by  the  court  below  was  the  cor- 
rect one,  without  regard  to  the  particular  authority  upon  which  it 
seems  to  have  relied. 

When  Sproul  &  Co.  purchased  the  1,500  shares  of  stock,  the  legal 
title  to  it  vested  in  Sloan,  subject  to  the  payment  of  the  balance  due 

see  Moses  v.  Grainger,  106  Tenn.  7,  58  S.  W.  1067,  53  L.  R.  A.  857  (1900), 
note.  As  to  contracts  increasing  tlie  common-law  rights  of  tlie  pledgee,  see 
29  Harvard  Law  Review,  277. 


Sec.  2)  BAILOR    AND    BAILEE  131 

by  him  for  commissions  and  advances  made  by  them.  He  became  the 
pledgor  and  they  the  pledgees  of  the  stock.  Learock  v.  Paxson,  208 
Pa.  602,  57  Atl.  1097;   Barbour  v.  Sproul,  239  Pa.  171,  86  Atl.  714. 

Sproul  &  Co.  might  have  used  the  stock  in  making  a  specific  loan  for 
tht  purpose  of  enabling  them  to  carry  the  stock  for  the  appellee,  but, 
when  they  used  it  for  any  other  purpose,  they  made  an  improper  use 
of  it,  and  when  they  pledged  it,  with  other  securities  under  their  con- 
trol, for  their  own  indebtedness,  they  unlawfully  converted  it  to  their 
own  use.  Douglas  v.  Carpenter,  17  App.  Div.  329,  45  N.  Y.  Supp. 
219;  Strickland  v.  Magoun,  119  App.  Div.  113,  104  N.  Y.  Supp.  425; 
Id.,  190  N.  Y.  545,  83  N.  E.  1132;  German  Savings  Bank  v.  Renshaw, 
78  Aid.  475,  28  Atl.  281.  "One  to  whom  stock  has  been  pledged  for 
a  loan  has  full  power  to  hypothecate  it  so  long  as  the  original  pledgor 
may  obtain  possession  of  it  upon  payment  of  his  debt;  but  if  it  has 
been  mingled  with  the  otlier  securities  of  the  pledgee,  or  has  been  re- 
hypothecated by  him  to  secure  a  different  or  larger  debt  than  that  for 
which  it  was  pledged  to  him,  or  if  the  collaterals  have  been  trans- 
ferred, but  the  obligation  they  were  given  to  secure  retained,  or  if  it 
has  been  in  any  way  placed  beyond  the  control  of  the  pledgee,  this  is 
a  conversion."  Vide  authorities  cited  in  support  of  this  in  31  Cyc. 
837.  But  it  is  earnestly  contended  by  learned  counsel  for  the  appel- 
lant that,  inasmuch  as  Sloan  suffered  no  damage  by  the  brokers'  con- 
version of  his  stock,  he  ought  not  to  be  permitted  to  defeat  their  claim. 

This  begs  the  question,  for  the  moment  the  stock  was  converted  by 
the  brokers  to  their  own  use,  the  customer  was  damaged,  and  the  meas- 
ure of  his  damages  was  the  highest  price  of  the  stock  between  the  date 
of  the  conversion  and  that  of  the  trial  of  a  suit  brought  by  the  cus- 
tomer for  the  unlawful  conversion.  Learock  v.  Paxson,  supra.  From 
this  there  would,  of  course,  have  to  be  deducted  the  balance  of  the  pur- 
chase money  due  the  brokers.  "The  pledgee  of  stock  cannot  legally 
part  with  the  possession  of  the  stock  by  a  sale  or  repledge  of  it,  ex- 
cept as  he  transfers  the  debt  which  the  stock  secures.  If  he  does  so 
he  is  guilty  of  a  conversion.  *  *  *  Even  where,  apparently,  the 
pledgor  would  not  be  injured  by  the  pledgee's  separating  the  stock 
from  the  debt  and  transferring  the  stock  pledged  as  collateral  security, 
yet  the  law  rigidly  protects  the  interests  of  the  debtor  and  pledgor  and 
will  not  compel  him  to  submit  to  the  danger  of  such  transfers  by  the 
pledgee.  There  may,  of  course,  be  an  express  contract  or  understand- 
ing to  the  contrary."    Cook  on  Corporations  (6th  Ed.)  §  471. 

The  contract  of  Sproul  &  Co.,  which  the  appellants,  through  their 
receiver,  would  enforce  against  Sloan,  was  one  to  hold  the  stock  for 
him  until  he  paid  the  balance  of  the  purchase  money  and  demanded 
deliver)'  of  the  securities,  and  in  the  interval  thev  had  no  right  to  re- 
pledge  the  stock  except  for  the  debt  which  it  secured.  Instead  of  per- 
forming their  contract  with  Sloan,  the  brokers  made  ijse  of  his  prop- 
erty as  if  it  was  a  part  of  their  own  capital  to  enable  them  to  make 


132  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

enormous  loans,  not,  however,  for  the  purpose  of  carrj-ing  his  stock, 
but  that  they  might  continue  to  carry  on  their  business  as  stockbrok- 
ers. They  treated  his  stock  as  their  own,  and,  the  moment  they  did 
so  without  his  authority,  they  placed  him  in  jeopardy.  After  thus  hav- 
ing broken  their  contract  with  him,  why  should  they  be  permitted  to 
demand  performance  by  him  ?  He  was  in  entire  ignorance,  until  a 
short  time  before  the  trial,  that  his  brokers  had  converted  his  stock  to 
their  own  use,  and,  as  soon  as  he  learned  what  they  had  done,  he 
promptly  repudiated  his  contract  with  them.  This  was  his  undoubted 
right.  The  tender  of  the  stock  to  him  before  it  was  sold  is  imma- 
terial, for,  at  the  time  of  the  tender,  the  contract  had  been  broken  by 
the  brokers,  and  therefore  neither  they  nor  their  receiver  could  there- 
after call  for  performance  by  their  customer.  It  was  for  this  reason 
that  the  learned  trial  judge  directed  the  verdict  for  the  defendant,  and 
no  sufficient  answer  has  been  given  to  it  on  this  appeal.  Nothing  is 
to  be  found  in  any  of  our  cases  in  conflict  with  the  view  of  the  court 
below.  The  main  reliance  of  counsel  for  appellant  seems  to  be  placed 
on  Wynkoop  v.  Seal,  64  Pa.  361.  In  that  case  the  broker  bought  stock 
for  a  customer  under  a  special  contract,  by  the  terms  of  wiiich  the 
customer  was  to  have  30  days'  credit  in  paying  for  it,  and  the  title  to 
it  did  not  pass  at  the  time  of  the  purchase  from  the  seller.  In  addi- 
tion to  this,  the  writer  finds  from  an  examination  of  the  paper  books 
in  the  case  that  it  did  not  appear  that  the  broker  had  h}-pothecated  the 
stock  for  any  other  indebtedness  than  that  of  his  own  customer. 

The  unauthorized  pledging  by  a  broker  of  his  customer's  securities 
places  the  latter  in  jeopardy,  and  the  only  safe  and  sound  rule,  in  the 
absence  of  authority  from  the  customer  to  pledge  them  as  they  were 
pledged  in  the  case  now  before  us,  is  that  the  broker  pledges  them  at 
the  peril  of  forfeiture  of  his  right  to  call  upon  his  customer  for  per- 
formance. It  was  contended  in  the  court  below  that  what  Sproul  & 
Co.  did  was  a  common  usage  among  brokers,  whose  business  would 
be  seriously  interfered  with  if  they  were  forbidden  to  repledge  se- 
curities of  their  customers.  As  to  this  the  learned  trial  judge  well 
said:  "Such  a  usage  can  never  be  shown,  if  it  be  in  contravention  of 
a  well-established  rule  of  law.  It  is  a  rule  of  law  in  Pennsylvania  that 
the  relation  between  a  broker  and  his  customer  with  respect  to  stocks 
purchased  upon  margin  is  that  of  pledgor  and  pledgee.  To  permit  the 
broker  to  use  the  stock  as  capital  in  his  own  business  is  to  shift  the 
risk  of  his  business  upon  his  customers,  a  thing  never  contemplated  in 
the  contract.  Such  a  usage,  if  it  exists,  is  unreasonable.  'Malus  usu-. 
abolendus  est.'  " 

The  assignments  of  error  are  overruled,  and  die  judgment  is  af- 
firmed. 


Sec.  2)  BAILOR    AND    BAILEE  133 

TALTY  V.  FREEDMAN'S  SAVINGS  &  TRUST  CO. 
(Supreme  Court  of  the  United  States,  1S70.    93  U.  S.  321,  23  L.  Ed.  SS6.) 

Mr.  Justice  Swayne.'"^  This  was  an  action  of  replevin,  prosecuted 
by  the  plaintiff  in  error.  The  judgment  was  against  him.  The 
bill  of  exceptions  discloses  all  the  evidence  given  by  both  parties.  The 
facts  lie  within  a  narrow  compass,  and,  except  as  to  one  point,  which  in 
our  view  is  of  no  consequence  in  this  case,  there  is  no  disagreement 
between  them. 

Talty  had  a  claim  against  the  city  of  Washington  for  work  and 
materials,  amounting  to  $6,096.75.  He  submitted  it  to  the  proper 
authority,  and  received  the  usual  voucher.  On  the  4th  of  January, 
1872,  the  claim  was  approved  by  the  commissioners  of  audit,  and  a 
certificate  to  that  effect  was  given  to  him.  On  the  6th  of  that  month 
he  employed  Kendig,  a  broker,  to  negotiate  a  loan  for  him.  With 
that  view  he  placed  in  Kendig's  hands  his  own  note  for  $3,000,  having 
sixty  days  to  run,  with  interest  at  the  rate  of  ten  per  cent,  per  annum, 
payable  to  his  own  order,  and  indorsed  by  him  in  blank.  He  also  placed 
in  the  hands  of  Kendig,  to  be  used  as  collateral,  his  claim  against  the 
city,  indorsed  in  blank  also.  The  same  day  Kendig  negotiated  the  loan 
and  paid  Talty  the  amount  of  the  note,  less  the  discount.  Kendig  sold 
the  claim  against  the  city  to  the  defendant  for  ninety-six  cents  on  the 
dollar.  The  money  was  paid  to  him.  The  purchase  was  made  in  good 
faith,  and  without  notice  of  any  right  or  claim  on  the  part  of  Talty. 
With  the  proceeds  of  this  sale  Kendig  took  up  the  note.  A  few  days 
before  its  maturity  Talty  called  on  Kendig  and  oft'ered  to  pay  the  note, 
and  demanded  back  the  collateral.  Kendig  declined  to  accede  to  the 
proposition.  He  insisted  that  the  understanding  between  him  and 
Talty  was  that  he  was  to  receive  no  commission  for  negotiating  the 
loan,  but  that  he  was  to  have  instead  the  right  to  sell  or  take  the  claim 
against  the  city,  if  he  chose  to  do  so,  at  ninety  cents  on  the  dollar.  He 
offered  to  pay  Talty  for  the  claim,  making  the  computation  at  that 
rate,  and  deducting  the  amount  of  the  note.  This  Talty  refused,  and 
insisted  that  Kendig  had  no  authority  with  respect  to  the  claim  but  to 
sell,  in  the  event  of  default  in  the  payment  of  the  note  at  maturity. 
Each  party  testified  accordingly.  Subsequently,  and  after  the  maturity 
of  the  note,  Talty  demanded  from  the  defendant  in  error  the  vouchers 
relating  to  the  claim.  The  defendant  refused  to  give  them  up,  and  this 
suit  was  thereupon  instituted.  The  marshal  took  them  under  the  writ 
of  replevin,  and  delivered  them  to  the  plaintiff. 

No  tender  was  made  by  Talty  to  the  defendant  in  error,  nor  to  Ken- 
dig, and  nothing  was  said  by  him  upon  the  subject  of  paying  his  note 
to  either,  except  the  oft'er  to  Kendig,  as  before  stated. 

101  The  statemeut  of  facts  and  part  of  the  opinion  are  omitted. 


134  POSSESSORY   INTERESTS   IN   CHATTELS  (Cll.  3 

After  receiving  back  the  collateral,  Talty  was  paid  the  full  amount 
of  it  by  the  commissioners  of  the  sinking  fund  of  the  cit)^  The  only 
dispute  between  the  parties  as  to  the  facts  was  that  in  relation  to  the 
authority  of  Kendig  touching  the  claim. 

Upon  this  state  of  the  evidence  the  court  instructed  the  jury  to  find 
for  the  defendant,  and  to  assess  the  damages  at  the  value  of  the  claim. 
This  was  done,  and  judgment  was  entered  upon  the  verdict.  The 
instruction  was  excepted  to. 

Before  entering  upon  the  examination  of  the  merits  of  the  con- 
troversy, it  may  be  well  to  consider  for  a  moment  the  situation  of 
the  several  parties.  Talty  has  received  and  holds  the  proceeds  of 
his  note  and  the  full  amount  of  the  collateral.  Kendig  holds  the 
note  and  the  amount  of  the  collateral,  less  four  per  cent.  The  de- 
fendant in  error,  the  bona  fide  purchaser  of  the  claim,  is  out  of  pocket 
the  amount  paid  for  it  to  Kendig,  and  has  the  burden  of  this  litigation 
and  the  security  afforded  by  the  replevin  bond  of  Talty. 

The  question  to  be  determined  is,  whether  a  tender  to  the  defendant 
in  error  by  Talty  of  the  amount  due  on  his  note  before  bringing  this  suit 
was  indispensable  to  entitle  him  to  recover. 

Kendig  was  not  a  factor  with  a  mere  lien.  He  was  a  pledgee.  The 
collateral  was  placed  in  his  hands  to  secure  the  payment  of  the  note. 
It  was  admitted  by  Talty  that  Kendig  was  authorized  to  sell  it  if  the 
note  were  not  paid  at  maturit3\  Kendig  had  a  special  property  in 
the  collateral.  He  was  a  pawnee  for  the  purposes  of  the  pledge.  Judge 
Story  says  (Bailm.  §§  324—327) :  "The  pawnee  may  by  the  common  law 
deliver  over  the  pawn  to  a  stranger  for  safe  custody  without  considera- 
tion ;  or  he  may  sell  or  assign  all  his  interest  in  the  pawn ;  or  he  may 
convey  the  same  interest  conditionally,  by  way  of  pawn,  to  another  per- 
son, without  in  either  case  destroying  or  invalidating  his  security.  But 
if  the  pawnee  should  undertake  to  pledge  the  property  (not  being  ne- 
gotiable securities)  for  a  debt  beyond  his  own,  or  to  make  a  transfer 
thereof  as  if  he  were  the  actual  owner,  it  is  clear  that  in  such  case  he 
would  be  guilty  of  a  breach  of  trust,  and  his  creditor  would  acquire 
no  title  beyond  that  held  by  the  pawjiee." 

"Whatever  doubt  may  be  indulged  in,  in  the  case  of  a  mere  factor, 
it  has  been  decided,  in  the  case  of  a  strict  pledge,  that,  if  the  pledgee 
transfers  the  same  to  his  own  creditor,  the  latter  may  hold  the  pledge 
until  the  debt  of  the  original  owner  is  discharged." 

Numerous  authorities  are  cited  in  support  of  these  propositions. 
The  subject  as  to  the  point  last  mentioned  was  learnedly  examined 
in  Jarvis's  Adm'r  v.  Rogers,  15  Mass.  389.  That  was  the  case  of  a 
re-pledge  by  the  first  pledgee.  The  rule  of  the  text  as  to  the  rights 
of  the  sub-pledgee  was  distinctly  affirmed. 

The  case  of  Lewis  v.  Mott,  36  N.  Y.  395,  was  in  some  of  its  lead- 
ing jx)ints  strikingly  like  the  case  before  us.  There,  Brown  had  placed 
certain  collaterals  in  the  hands  of  Howe  to  secure  the  payment  of 


Sec.  2)  BAILOR    AND   BAILEE  135 

two  promissory  notes  of  Brown,  held  by  Howe ;  Howe  sold  the  notes 
and  collaterals  to  Varnum ;  Brown  offered  to  pay  Varnum  the  amount 
of  the  notes,  and  demanded  the  collaterals;  Varnum  refused  to  give 
them  up,  and  Brown  sued  for  them.  The  court  said:  "It  must  be 
conceded  that  A^arnum,  by  the  purchase  of  those  securities  from  Howe, 
acquired  the  lien  and  interest  of  Howe,  whatever  that  may  have 
been;  and  the  plaintiff's  assignee,  to  have  entitled  himself  to  a  re- 
delivery of  these  securities,  must  have  tendered  the  amount  of  the 
lien.  There  was  simply  an  offer  to  pay  Varnum  the  amount  due  upon 
these  notes.  It  was  unattended  with  any  tender  of  the  amount  due, 
and  was  insufficient  to  extinguish  the  lien  and  thus  entitle  Brown 
to  the  return  of  the  notes.  *  *  *  The  offer  to  pay  is  not  the 
equivalent  for  an  actual  tender.  Bakeman  v.  Pooler,  15  Wend.  (N.  Y.) 
(iZ7 ;  Strong  v.  Blake,  46  Barb.  (N.  Y.)  227 ;  Edmonston  v.  McLoud, 
16  N.  Y.  543."  See  also  Baldwin  v.  Ely,  9  How.  580.  13  L.  Ed.  266; 
Merchants'  Bank  v.  State  Bank,  10  Wall.  604,  19  L.  Ed.  1008. 

The  English  law  is  the  same.  In  Donald  v.  Suckling,  Law  Rep. 
1  O.  B.  585,  the  case  was  this :  A.  deposited  debentures  with  B.  as 
security  for  the  payment  of  a  bill  endorsed  by  A.  and  discounted  by 
B.  It  was  agreed,  that,  if  the  bill  was  not  paid  when  due,  B.  might 
sell  or  otherwise  dispose  of  the  debentures.  Before  the  maturity  of 
the  bill,  B.  deposited  the  debentures  with  C,  to  be  held  as  security 
for  a  loan  by  him  to  B.  larger  than  the  amount  of  the  bill.  The  bill 
was  dishonored,  and  while  it  was  unpaid,  A.  sued  C.  in  detinue  for 
the  debentures.  It  was  hekl  that  A.  could  not  maintain  the  suit  with- 
out having  paid  or  tendered  to  C.  the  amount  of  the  bill.  The  case 
was  elaborately  considered  by  the  court.  See  also  Moore  v.  Conham, 
Owen,  123;  Ratclift'e  v.  Davis,  Yelv.  178;  Johnson  v.  Gumming, 
Scott's  C.  B.  n.  s.  331. 

A  tender  to  the  second  pledgee  of  the  amount  due  from  the  first 
pledgor  to  the  first  pledgee  extinguishes  ipso  facto  the  title  of  the 
second  pledgee;  but  that  there  can  be  no  recovery  against  him  with- 
out tender  of  payment  is  equally  well  settled.  Donald  v.  Suckling, 
supra;  Jarvis's  Adm'r  v.  Rogers,  supra;  s.  c,  13  Mass.  105. 

But  it  is  suggested  that  the  note  was  in  the  hands  of  Kendig,  and 
that  Talty  could  not,  therefore,  safely  pay  the  amount  due  upon  it  to 
the  holder  of  the  collateral.  The  like  fact  existed  in  Donald  v.  Suck- 
ling. It  is  not  adverted  to  in  the  arguments  of  counsel,  nor  in  the  opin- 
ions of  the  judges  in  that  case.  It  could  not,  therefore,  have  been 
regarded  by  either  as  of  any  significance.  The  answer  here  to  the 
objection  is  obvious.  The  note,  a  few  days  before  its  maturity,  was  in 
the  hands  of  Kendig.  There  being  no  proof  to  the  contrary,  it  is  to  be 
presumed  to  have  remained  there.  This  suit  was  commenced  after  it 
matured.  Talty  might  then  have  paid  the  amount  due  UDon  it  to  the  de- 
fendant in  error,  and  could  thereupon  have  defended  successfully  in 
a  suit  on  the  note,  whether  brought  by  Kendig,  or  any  indorsee  taking 


13G  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

it  after  due.  He  might  also,  after  making  the  tender,  have  filed 
his  bill  in  equity,  making  Kendig  and  the  savings  bank  defendants, 
and  thus  have  settled  the  rights  of  all  the  parties  in  that  litigation. 
Having  sued  at  law  without  making  the  tender,  it  is  clear  he  was  not 
entitled  to  recover. 

The  instruction  given  by  the  court  to  the  jury  was,  therefore,  cor- 
rect.     *      *      *  102 


WHITNEY  V.  PEAY,  Receiver. 
(Supreme  Court  of  Arkansas,  1802.     24  Ark.  22.) 

English,  C.  J-^"^  On  the  1st  of  January,  1840,  the  state  issued  to 
the  Real  Estate  Bank,  in  pursuance  of  its  charter,  500  bonds  for  $1,000 
each,  bearing  interest,  etc.,  to  be  sold  at  par,  for  the  purpose  of  pro- 
curing banking  capital,  etc. 

On  the  7th  of  September,  1840,  the  cashier  of  the  bank,  with  the 
approval  of  two  of  the  bond  commissioners,  entered  into  a  contract 
with  the  North  American  Trust  &  Banking  Company,  of  New  York, 
by  which  that  company  agreed  to  loan  to  the  Real  Estate  Bank  $250,- 
000,  upon  a  pledge  or  hypothecation  of  the  bonds  above  referred  to, 
which  sum  was  to  be  advanced  by  installments  and  repaid  at  stipu- 
lated periods,  with  interest,  etc. 

In  pursuance  of  this  contract  the  bonds  were  delivered  to  the  North 
American  Trust  &  Banking  Company,  and*it  is  admitted  that  the  Real 
Estate  Bank  received,  through  its  agents,  and  appropriated  to  its  use, 
the  sum  of  $121,336.59.    No  further  sum  was  advanced. 

102  Ace:  Dnnald  v.  Sueklins,  L.  R.  1  Q.  B.  5S.5  (ISfiG) ;  Bradley  v.  Parks, 
S3  111.  1C9  (1S7G).     See  Lewis  v.  Mott,  36  N.  Y.  395  (1SG7). 

A.  pledged  stock  v?lth  B.  as  collateral.  B.  wrongfully  pledged  it  to  C,  who 
took  with  notice.  A.  paid  B.  Held,  A.  may  recover  the  full  value  of  the 
stock  from  C.  German  Sav.  Bank  of  Baltimore  City  v.  Renshaw,  78  Md.  475, 
28  Atl.  2S1  (1894).  See,  also.  Usher  v.  Van  Vrauken,  48  App.  Div.  413,  03  X. 
T.  Supp.  104  (1900). 

Otherwise  when  0.  buys  in  good  faith,  and  A.  has  merely  tendered  to  B., 
and  B.  is  bankrupt.  First  Nat.  Bank  of  Louisville  v.  Boyce,  78  Ky.  42,  3D 
Am.  Rep.  198  (1S79),  semble. 

A.  pledged  a  horse  to  B.,  who  wrongfully  sold  it  to  C.  A.  took  the  hor.se 
from  C.  Held,  C.  may  recover  possession  of  the  horse  from  A.  Williams  v. 
Ashe,  111  Cal.  ISO.  43  Pac.  595  (1896). 

A.  delivered  a  diamond  ring  to  B.  as  collateral  for  a  loan.  B.  changed  the 
setting  of  the  stone  and  gave  the  ring  to  C.  as  a  gift.  Held,  A.  may  replevy 
the  ring  without  paying  or  tendering  the  debt  to  0.  Sheridan  v.  Presas,  IS 
Misc.  Rep.  ISO,  41  N.  Y.  Supp.  451  (1896). 

A.  pledged  corn  to  B.  B.  wrongfully  sold  it  to  C,  who  In  turn  wrong- 
fully sold  it.  A.  brought  assumpsit  for  money  had  and  received  against  C. 
Held,  A.  may  recover  only  the  value  of  the  corn  less  the  debt  which  it  was 
pledged  to  secure.  Beldon  v.  Perkins.  7S  111.  449  (1S75).  See  Boswell  v. 
Thigpen,  75  Miss.  308,  22  South.  823  (1897). 

103  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  2)  BAILOR    AND    BAILEE  137 

About  the  1st  of  December,  1840,  the  North  American  Trust  & 
Banking  Company  pledged  the  same  bonds  to  James  Holford  &  Co., 
bankers  of  London,  for  a  loan  of  $325,000.  Afterwards,  Holford  be- 
came the  sole  owner  of  the  debt,  and  holder  of  the  bonds  so  pledged, 
by  transfer  from  his  partner. 

Afterwards,  upon  a  bill  filed  in  the  chancery  court  of  New  York, 
by  George  Manning  Tracy,  a  stockholder  and  creditor,  against  Thomas 
G.  Talmage,  president  of  the  North  American  Trust  &  Banking  Com- 
pany, alleging  its  insolvency,  etc.,  it  was  placed  in  liquidation ;  and 
David  Leavitt  was  appointed  by  the  court,  a  receiver  in  chancery,  to 
settle  its  affairs. 

Pending  the  administration  of  the  trust,  James  Holford  prayed  the 
court,  by  petition,  that  the  receiver  might  be  ordered  to  unite  with 
him  in  a  reference,  pursuant  to  the  statute  of  New  York,  of  six  claims 
presented  by  him  against  the  banking  company ;  and  the  claims  were 
accordingly  referred  to  three  referees,  appointed  by  the  court  (two 
counsellors  at  law  and  one  merchant),  with  instructions  to  ascertain 
and  report,  in  case  they  found  any  thing  due  from  the  company  upon 
the  claims,  what  collateral  securities  had  been  legally  assigned  for  the 
security  of  the  sums  so  found  due  from  the  company,  and  the  value 
thereof ;  and  that  the  referees  deduct  from  the  amount  so  found  due 
to  Holford,  the  ascertained  value  of  all  such  collateral  securities. 

The  referees,  after  a  protracted  and  laborious  investigation,  re- 
ported that  the  company  was  indebted  to  the  American  administrators 
of  Holford  (he  having  died  pending  the  investigation),  upon  the  si.x 
claims  referred  to  them,  for  principal  and  interest,  to  1st  October. 
1857,  in  the  sum  of  $895,896.42. 

Included  in  this  sum  was  the  amount  advanced  by  Holford  to  the 
company,  upon  the  pledge  of  the  500  Arkansas  bonds. 

The  referees  further  reported  that  certain  collateral  securities,  par- 
ticularly described  by  them,  had  been  legally  assigned  by  the  com- 
pany to  Holford,  to  secure  the  payment  of  the  sum  found  due  to  his 
estate,  as  above ;  the  aggregate  value  thereof  was  ascertained  to  be 
$456,200  (the  separate  value  of  each  collateral  security  being  ascer- 
tained and  stated),  which  being  deducted  from  the  sum  found  to  be 
due  to  his  administrators  from  the  company,  left  a  balance  in  their 
favor  of  $439,696.42. 

Among  the  collateral  securities  reported  by  the  referees  as  having 
been  legally  assigned  to  Holford,  by  the  companj',  were  the  500  Ar- 
kansas bonds,  for  $1,000  each,  which  they  ascertained  to  be  of  the 
actual  value  of  $425,000,  on  the  1st  October,  1857. 

The  report  of  the  referees  was  approved  and  confirmed  by  the  court, 
and  a  decree  entered  in  favor  of  Holford's  administrators  for  the  bal- 
ance found  to  be  due  them  upon  their  claims,  after  deducting  the  re- 
ported value  of  the  collateral  securities,  to  be  paid  by  the  receiver  out 
of  the  assets  of  the  company.     And  it  was  further  decreed  "that  the 


ins  POSSESSORY   INTERESTS   IN   CHATTELS  (Ch.  3 

value  of  the  said  collateral  securities  having  been  duly  ascertained  and 
credited  upon  their  said  claim,  pursuant  to  the  directions  contained  in 
the  order  of  reference,  the  administrators,  etc.,  have  become,  and  are 
the  legal  owners  of,  and  legally  and  equitably  possessed  of,  and  well 
entitled,  as  such  administrators,  to  all  and  singular  the  following  bonds, 
notes,  stock,  etc.,  being  the  collateral  securities  in  said  report  partic- 
ularly mentioned  and  described,  that  is  to  say,  500  bonds  of  the  state 
of  Arkansas,  numbered,  etc.,  issued  to  the  Real  Estate  Bank,  etc.,  for 
$1,000  each,"  etc. 

In  the  meantime  Benjamin  D.  Whitney  made  a  proposition  to  David 
Leavitt,  the  receiver  in  chancery,  etc.,  to  give  $2,500  for  the  debt  of 
the  Real  Estate  Bank  to  the  North  American  Trust  &  Banking  Com- 
pany, for  moneys  advanced  by  the  latter  to  the  former,  under  the 
agreement  of  7th  Sept.,  1840,  above  stated.  The  proposition  of  Whit- 
ney was  reported  to  the  court  superintending  the  administration  of 
the  trust,  and  the  court  directed  the  receiver  to  accept  the  proposition, 
and  to  assign  the  debt  to  Whitney  upon  his  paying  therefor  the  sum 
proposed.  A  written  assignment  was  accordingly  made  by  the  re- 
ceiver. 

Afterwards,  Whitney  filed  a  bill  in  the  Pulaski  chancery  court, 
against  Peay,  as  receiver  in  chancery  of  the  assets  of  the  Real  Estate 
Bank,  and  the  English  executors  and  American  administrators  of 
Holford,  accompanied  by  voluminous  exhibits,  alleging  and  showing 
the  facts  above  stated,  praying  a  decree  against  the  receiver  for  the 
amount  of  the  debt,  with  interest,  assigned  to  him  as  above,  to  be  paid 
out  of  the  assets  of  the  bank;  and  that  the  administrators,  etc.,  of  Hol- 
ford be  required  to  assert  and  litigate  their  claim,  etc.,  to  the  500  Ar- 
kansas bonds,  etc.,  and  that  they  be  compelled  to  produce  and  sur- 
render them  for  cancellation,  etc.  , 

Upon  the  answer  of  Peay,  containing  a  demurrer  to  the  bill,  and  a 
demurrer  interposed  for  the  representatives  of  Holford,  the  bill  was 
dismissed,  and  Whitney  appealed  to  this  court.     *     *     * 

Assuming  the  contract  between  the  Real  Estate  Bank  and  the  North 
American  Trust  &  Banking  Company,  to  have  been  in  equity,  a  valid 
one,  the  company  held  the  bonds  in  pledge  for  the  repayment  of  the 
money  advanced  to  the  bank;  and  the  bank  was  entitled  to  have  the 
bonds  re-delivered  to  it  on  payment  of  the  debt. 

After  the  North  American  Trust  &  Banking  Company  transferred 
the  bonds  in  pledge  to  Holford  &  Co.,  for  a  larger  sum  of  money  than 
it  had  advanced  to  the  Real  Estate  Bank  on  the  faith  of  the  bonds, 
did  the  company  still  continue  to  be  the  owner  of  the  debt  due  from 
the  Real  Estate  Bank,  so  that  it  could  be  sold  by  the  receiver  of  the 
company,  after  it  was  placed  in  liquidation,  to  Whitney,  and  vest  in 
him  a  right  to  collect  the  debt? 

The  pawnee  may  sell  or  assign  all  his  interest  in  the  pawn.  If  he 
transfers  the  pledge  to  his  own  creditor,  the  latter  may  hold  the  pledge, 


Sec.  2)  BAILOR    AND    BAILEE  139 

until  the  debt  of  the  original  owner  is  discharged.  Story  on  Bail.  §§ 
324,  327. 

The  general  rule  is,  that  liens  at  law  on  personal  property  exist  only 
in  cases  where  the  party  entitled  to  them  has  the  possession  of  the 
goods;  and  if  he  once  part  with  the  possession,  after  the  lien  attaches, 
the  lien  is  gone.  Being  in  the  nature  of  a  security  resting  on  property 
for  the  payment  of  a  debt,  the  pledgee's  lien  cannot  be  separated  ei- 
ther from  the  possession  of  the  goods,  or  from  the  debt;  it  is  col- 
lateral to  the  debt,  and  it  must  accompany  the  possession.  His  inter- 
est may  be  transferred:  it  will  pass  at  his  death  to  his  personal  rep>- 
resentatives,  or  he  may,  it  seems,  assign  over  his  interest  in  the  pawn 
so  that  the  assignee  will  take  his  rights  and  responsibilities  under  the 
contract  of  pledge.  Edwards  on  Bail.  210:  Tarvis  v.  Rogers,  15  Mass. 
408;   Curtis  et  al.  v.  Leavitt,  15  N.  Y.  103." 

It  follows  that  when  the  North  American  Trust  &  Banking  Com- 
pany transferred  the  Arkansas  bonds  to  Holford  &  Co.,  in  pledge,  the 
debt  due  to  the  company  from  the  Real  Estate  Bank,  resting  upon  and 
adhering  to  the  bonds — the  pledge — passed  also  to  Holford  &  Co.,  by 
the  transfer. 

After  the  transfer  was  made,  the  North  American  Trust  &  Bank- 
ing Company  could  not  have  compelled  the  Real  Estate  Bank  to  pay 
to  it  the  money  advanced  upon  faith  of  the  bonds,  because  the  com- 
pany had  parted  with  the  bonds,  and  was  not  in  a  condition  to  sur- 
render them  to  the  Real  Estate  Bank,  on  payment,  as  by  the  terms  of 
the  contract  of  pledge  it  was  obliged  to  do. 

In  what  better  condition  does  Whitney  stand,  who  purchased  the 
debt  of  the  receiver  of  the  company,  in  liquidation?  Did  he  purchase 
a  greater  right  than  the  company  had?    We  think  not. 

After  the  bonds  were  transferred  in  pledge  to  Holford  &  Co.,  the 
Real  Estate  Bank  had  a  right  to  redeem  them  by  paying  to  them  the 
money  advanced  to  the  bank  by  the  North  American  Trust  &  Bank- 
ing Company,  with  interest,  unless  indeed  Holford  &  Co.,  had  a  right 
to  claim  a  larger  sum  by  virtue  of  circumstances  connected  with  the 
transfer  of  the  bonds  to  them,  which  placed  them  in  the  attitude  of 
innocent  holders,  entitled  to  protection,  which  is  not  a  question  for' us 
to  decide  in  this  case. 

But  the  appellant,  Whitney,  who  seems  to  have  been  an  adventurer 
in  purchasing  the  debt  due  from  the  Real  Estate  Bank,  and  who  pur- 
chased it  for  a  trifling  sum  compared  to  the  magnitude  of  the  debt 
and  interest,  would,  if  the  prayer  of  his  bill  was  granted,  compel  the 
representatives  of  Holford  to  surrender  the  bonds  to  the  receiver  of 
the  Real  Estate  Bank,  and  receive  nothing,  while  he  would  receive  the 
full  amount  due  from  the  bank,  though  the  very  court  which  ordered 
his  proposition  to  purchase  the  debt  to  be  accepted,  had  charged  Hol- 
ford's  administrators  with  the  market  value  of  the  bonds,  and  de- 
creed that  they  had  been  legally  transferred  to  him,  and  that  his  ad- 


140  POSSESSORY  INTERESTS  IN  CHATTELS  (Ch.  3 

ministrators  were  well  entitled  to  hold  them,  etc. :  and  this  decree  was 
made  after  the  deed  of  assignment  referred  to  in  the  bill,  and  sup- 
posed by  appellant's  counsel  to  cut  some  figure  in  the  case,  had  been 
set  aside  for  fraud. 

The  decree  of  the  court  below  must  be  affirmed.*"* 

10*  A.  made  a  note  to  B.  and  delivered  a  boat  as  pledge.  B.  Indorsed  the 
note  to  C,  but  made  no  delivery  or  mention  of  the  boat,  which  had  l)eon  at- 
tached by  creditors  of  A.  ITeld,  G.  gets  no  interest  In  the  boat  that  he  can 
enforce  against  attaching  creditors  of  A.  Johnson  v.  Smith,  30  Tenn.  (11 
Humph.)  39G  (1S50). 

Where  the  collateral  consists  of  a  judgment  against  X.,  and  only  the  debt 
is  assigned  to  C,  he  can  compel  B.  to  devote  the  proceeds  of  the  judgment  to 
the  payment  of  the  debt  so  assigned.  Painter  v.  Harding,  3  Phila.  (Pa.)  50 
(185S). 

Compare  Morgan  v.  Dugan  (Md.)  30  Atl.  55S  (1S94). 

A.  executed  a  note  to  B.  or  order.  B.  executed  a  note  to  C.  or  order,  and 
delivered  the  unindorsed  A.  note  to  C.  as  security.  C.  assigned  the  A.  note 
to  D.  Held,  D.  cannot  collect  the  A.  note.  Van  Eman  v.  Stauchtield,  13 
Minn.  75  (Gil.  70)  (IbtiS). 


i 


Sec.  1)  ACQUISITION   OF   OWNERSHIP  141 

CHAPTER  IV 
ACQUISITION  OF  OWNERSHIP 


SECTION  1.— MERE  TAKING  OF  POSSESSION 


PIERSON  V.  POST. 
(Supreme  Court  of  New  York;  1S05.    3  Caines,  173,  2  Am.  Dec.  264.) 

This  was  an  action  of  trespass  on  the  case  commenced  in  a  justice's 
court,  by  the  present  defendant  against  the  now  plaintiff. 

The  declaration  stated  that  Post,  being  in  possession  of  certain 
dogs  and  hounds  under  his  command,  did,  "upon  a  certain  wild  and 
uninhabited,  unpossessed  and  waste  land,  called  the  beach,  find  and 
start  one  of  those  noxious  beasts  called  a  fox,"  and  whilst  there  hunt- 
ing, chasing  and  pursuing  the  same  with  his  dogs  and  hounds,  and 
when  in  view  thereof,  Pierson,  well  knowing  the  fox  was  so  hunted 
and  pursued,  did,  in  the  sight  of  Post,  to  prevent  his  catching  the 
same,  kill  and  carry  it  off.  A  verdict  having  been  rendered  for  the 
plaintiff  below,  the  defendant  there  sued  out  a  certiorari,  and  now 
assigned  for  error,  that  the  declaration  and  the  matters  therein  con- 
tained were  not  sufficient  in  law  to  maintain  an  action. 

Tompkins,  J.^  This  cause  comes  before  us  on  a  return  to  a  certi- 
orari directed  to  one  of  the  justices  of  Queens  county. 

The  question  submitted  by  the  counsel  in  this  cause  for  our  deter- 
mination is,  whether  Lodowick  Post,  by  the  pursuit  with  his  hounds 
in  the  manner  alleged  in  his  declaration,  acquired  such  a  right  to,  or 
property  in  the  fox  as  will  sustain  an  action  against  Pierson  for  kill- 
ing and  taking  him  away? 

The  cause  was  argued  with  much  ability  by  the  counsel  on  both 
sides,  and  presents  for  our  decision  a  novel  and  nice  question.  It  is 
admitted  that  a  fox  is  an  animal  fer?e  naturre,  and  that  property  in 
such  animals  is  acquired  by  occupancy  only.  These  admissions  nar- 
row the  discussion  to  the  simple  question  of  what  acts  amount  to  oc- 
cupancy, applied  to  acquiring  right  to  wild  animals. 

If  we  have  recourse  to  the  ancient  writers  upon  general  principles 
of  law,  the  judgment  below  is  obviously  erroneous.     Justinian's  In- 

1  Part  of  the  opinion  of  Tompkins,  J.,  and  the  dissenting  opinion  of  Livings- 
ton, J.i  are  omitted. 


142  ACQUISITION   OF  OWNERSHIP  (Cll.  4 

stitutes,  lib.  2,  tit.  1,  s.  13,  and  Fleta,  lib.  3,  c.  2,  p.  175,  adopt  the 
principle,  that  pursuit  alone  vests  no  property  or  right  in  the  hunts- 
man ;  and  that  even  pursuit,  accompanied  with  wounding,  is  equally 
ineffectual  for  that  purpose,  unless  the  animal  be  actually  taken.  The 
same  principle  is  recognised  by  Bracton,  lib.  2,  c.  1,  p.  8. 

Puffendorf,  lib.  4,  c.  6,  §§  2  and  10,  defines  occupancy  of  beasts 
ferae  naturse,  to  be  the  actual  corporal  possession  of  them,  and  Bynker- 
shock  is  cited  as  coinciding  in  this  definition.  It  is  indeed  with  hesita- 
tion that  Puffendorf  affirms  that  a  wild  beast  mortally  wounded,  or 
greatly  maimed,  cannot  be  fairly  intercepted  by  another,  whilst  the 
pursuit  of  the  person  inflicting  the  wound  continues.  The  foregoing 
authorities  are  decisive  to  show  that  mere  pursuit  gave  Post  no  legal 
right  to  the  fox,  but  that  he  became  the  property  of  Pierson,  who  in- 
tercepted and  killed  him. 

It  therefore  only  remains  to  inquire  whether  there  are  any  contrary 
principles,  or  authorities,  to  be  found  in  other  books,  which  ought  to 
induce  a  different  decision.  Most  of  the  cases  which  have  occurred 
in  England,  relating  to  property  in  wild  animals,  have  either  been 
discussed  and  decided  upon  the  principles  of  their  positive  statute 
regulations,  or  have  arisen  between  the  huntsman  and  the  owner  of 
the  land  upon  which  beasts  fera;  natura:  have  been  apprehended ;  the 
former  claiming  them  by  title  of  occupancy,  and  the  latter  ratione 
soli.  Little  satisfactory  aid  can,  therefore,  be  derived  from  the  Kng- 
lish  reporters. 

Barbeyrac,  in  his  notes  on  Puffendorf,  does  not  accede  to  the  defini- 
tion of  occupancy  by  the  latter,  but  on  the  contrary  affirms,  that  actual 
bodily  seizure  is  not,  in  all  cases,  necessary  to  constitute  possession 
of  wild  animals.  He  does  not,  however,  describe  the  acts  which,  ac- 
cording to  his  ideas,  will  amount  to  an  appropriation  of  such  animals 
to  private  use,  so  as  to  exclude  the  claims  of  all  other  persons,  by 
title  of  occupancy,  to  the  .'^anie  animals ;  and  he  is  far  from  averring 
that  pursuit  alone  is  sufficient  for  that  purpose.  To  a  certain  extent, 
and  as  far  as  Barbeyrac  appears  to  me  to  go,  his  objections  to  Puffen- 
dorf's  definition  of  occupancy  are  reasonable  and  correct.  That  is 
to  say,  that  actual  bodily  seizure  is  not  indispensable  to  acquire  right 
to,  or  possession  of,  wild  beasts ;  but  that,  on  the  contrary,  the  mortal 
wounding  of  such  beasts,  by  one  not  abandoning  his  pursuit,  may,  with 
the  utmost  propriety,  be  deemed  possession  of  him ;  since,  thereby  the 
pursuer  manifests  an  unequivocal  intention  of  appropriating  the  animal 
to  his  individual  use,  has  deprived  him  of  his  natural  liberty,  and 
brought  him  within  his  certain  control.  So  also,  encompassing  and 
securing  such  animals  with  nets  and  toils,  or  otherwise  intercepting 
them  in  such  a  manner  as  to  deprive  them  of  their  natural  liberty, 
and  render  escape  impossible,  may  justly  be  deemed  to  give  posses- 
sion of  them  to  those  persons  who,  by  their  industry  and  labor,  have 
used  such  means  of  apprehending  them.     *     *     * 


Sec.  1)  MERE  TAKING    OF   POSSESSION  143 

The  case  cited  from  11  Mod.  74-130,  I  think  clearly  distinguishable 
from  the  present;  inasmuch  as  there  the  action  was  for  maliciously 
hindering  and  disturbing  the  plaintiff  in  the  exercise  and  enjoyment 
of  a  private  franchise ;  and  in  the  report  of  the  same  case  (3  Salk. 
9)  Holt,  C.  J.,  states,  that  the  ducks  were  in  the  plaintiff's  decoy  pond, 
and  so  in  his  possession,  from  which  it  is  obvious  the  court  laid  much 
stress  in  their  opinion  upon  the  plaintiff's  possession  of  the  ducks,  ra- 
tione  soli. 

I  am  the  more  readily  inclined  to  confine  possession  or  occupancy 
of  beasts  ferte  naturre,  within  the  limits  prescribed  by  the  learned  au- 
thors above  cited,  for  the  sake  of  certainty,  and  preserving  peace  and 
order  in  society.  If  the  first  seeing,  starting,  or  pursuing  such  ani- 
mals, without  having  so  wounded,  circumvented  or  ensnared  them,  so 
as  to  deprive  them  of  their  natural  liberty,  and  subject  them  to  the 
control  of  their  pursuer,  should  afford  the  basis  of  actions  against 
others  for  intercepting  and  killing  them,  it  would  prove  a  fertile  source 
of  quarrels  and  litigation. 

However  uncourteous  or  unkind  the  conduct  of  Pierson  towards 
Post,  in  this  instance,  may  have  been,  yet  his  act  was  productive  of  no 
injury  or  damage  for  which  a  legal  remedy  can  be  applied.  We  are 
of  opinion  the  judgment  below  was  erroneous  and  ought  to  be  re- 
versed.- 

Livingston,  J.,  dissented. 


YOUNG  V.  HICHENS. 
(Queen's  Bench,  1S44.    6  Q.  B.  606.) 

Trespass.  The  first  count  charged  that  defendant,  with  force  etc., 
seized  and  disturbed  a  fishing  scan  and  net  of  plaintiff,  thrown  into 
the  sea  for  fish,  wherein  plaintiff  had  taken  and  inclosed,  and  then 
held  inclosed  in  his  own  possession,  a  large  number  of  fish,  to  wit, 
etc.,  and  that  defendant  threw  another  fishing  sean  and  net  within  and 
upon  plaintiff's  sean  and  net,  and  for  a  long  time,  to  wit,  etc.,  pre- 
vented plaintiff  from  taking  the  fish,  so  taken  and  inclosed,  out  of  his 
sean  and  net,  as  he  could  otherwise  have  done ;  and  drove,  etc.,  the 
fish;  whereby  part  of  them  died,  part  were  injured,  and  part  escaped; 
and  the  sean  and  net  was  injured.  Second  count,  that  defendant  with 
force,  etc.,  seized,  took,  and  converted  fish  of  plaintiff. 

Pleas:    1.  Not  guilty.     Issue  thereon. 

2.  To  the  first  count,  as  to  preventing  plaintiff  from  taking  the  fish 
alleged  to  be  inclosed  in  his  possession,  and  driving,  etc.,  the  said  fish ; 

2  Compare  Buster  v.  Newkirk,  20  Johns,  (X.  Y.)  75  (1S22). 


144  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

that  the  fish  were  not  plaintiff's  fish,  and  he  was  not  possessed  of 
them,  in  manner,  etc. :    conclusion  to  the  country.     Issue  thereon. 

3.  To  the  second  count,  that  the  fish  were  not  the  plaintiff's  fish,  in 
manner,  etc. ;   conclusion  to  the  country.     Issue  thereon. 

On  the  trial,  before  Atcherley  Serjt,  at  the  Cornwall  Spring  As- 
sizes, 1843,  it  appeared  that  the  plaintiff  had  drawn  his  net  partially 
round  the  fish  in  question,  leaving  a  space  of  about  seven  fathoms  open, 
which  he  was  about  to  close  with  a  stop  net ;  that  two  boats,  belong- 
ing to  the  plaintiff,  were  stationed  at  the  opening,  and  splashing  the 
water  about,  for  the  purpose  of  terrifying  the  fish  from  passing 
through  the  opening;  and  that,  at  this  time,  the  defendant  rowed  his 
boat  up  to  the  opening,  and  the  disturbance,  and  taking  of  the  fish, 
complained  of,  took  place.  The  learned  Serjeant  left  to  the  jury  the 
question  of  fact  whether  the  fish  were  at  that  time  in  the  plaintiff's 
possession,  and  also  other  questions  of  fact  on  the  other  issues.  Ver- 
dict for  plaintiff  on  all  the  issues,  with  damages  separately  assessed, 
namely,  £568  for  the  value  of  the  fish,  and  £1  for  the  damage  done 
to  the  net. 

Lord  Denm.\n,  C.  J.'  It  does  appear  almost  certain  that  the  plain- 
tiff would  have  had  possession  of  the  fish  but  for  the  act  of  the  de- 
fendant ;  but  it  is  quite  certain  that  he  had  not  possession.  Whatever 
interpretation  may  be  put  upon  such  terms  as  "custody"  and  "posses- 
sion," the  question  will  be  whether  any  custody  or  possession  has  been 
obtained  here.  I  think  it  is  impossible  to  say  that  it  had,  until  the 
party  had  actual  power  over  the  fish.  It  may  be  that  the  defendant 
acted  unjustifiably  in  preventing  the  plaintiff  from  obtaining  such 
power :  but  that  would  only  shew  a  wrongful  act,  for  which  he  might 
be  liable  in  a  proper  form  of  action. 

Patteson,  J.  I  do  not  see  how  we  could  support  the  affirmative 
of  these  issues  upon  the  present  evidence,  unless  we  were  prepared 
to  hold  that  all  but  reducing  into  possession  is  the  same  as  reducing 
into  possession.  Whether  the  plaintiff  has  any  cause  of  action  at  all 
is  not  clear:    possibly  there  may  be  a  remedy  under  the  statutes. 

WiGHTMAN,  J.  I  am  of  the  same  opinion.  If  the  property  in  the 
fish  was  vested  in  the  plaintiff  by  his  partially  inclosing  them  but  leav- 
ing an  opening  in  the  nets,  he  would  be  entitled  to  maintan  trover  for 
fish  which  escaped  through  that  very  opening. 

Coleridge,  J.,  was  absent. 

Rule  absolute  for  reducing  the  damages  to  20s.,  and  entering  the 
verdict  for  defendant  on  the  second  and  third  issues.* 

3  The  statement  of  facts  Is  abridged  and  the  secoud  opinion  of  Lord  Den- 
man,  C.  J.,  is  omitted. 

*  In  the  wliale  fishery  the  English  custom  was  said  to  be  that  the  vessel 
whose  harpoon  was  first  driven  into  the  whale  acquired  title  provided  the 
harpoon  remained  connected  by  rope  to  a  boat.     Littledale  v.  Scaith,  1  Taunt. 


Sec.  1)  MERE   TAKING   OF  POSSESSION  145 

STATE  V.  SHAW  et  al. 
(Supreme  Court  of  Ohio,  1902.    67  Ohio  St.  157,  65  N.  E,  875,  GO  L.  R.  A.  4S1.) 

[The  defendants  were  indicted  for  the  larceny  of  fish  by  taking  them 
from  nets  in  Lake  Erie.] 

It  also  appears  that  the  construction  of  these  pound  nets  is  such 
that  the  entrance  to  the  net  was  about  thirty-five  feet  deep,  eight  rods 
long,  and  terminated  in  an  aperture  leading  into  the  net,  which  was  two 
feet  and  ten  inches  in  diameter.  This  tunnel,  as  it  is  called,  extended 
into  the  net,  or  pot,  some  five  or  six  feet,  and  the  pot  was  about  twenty- 
eight  feet  square,  reaching  perhaps  four  feet  above  the  water.  The 
evidence  shows  that  the  opening  of  the  tunnel  into  the  pot  was  the 
place  where  the  fish  entered,  and  that  it  was  at  all  times  left  open. 
There  is  no  evidence  as  to  the  quantity  of  fish  escaping  from  the  nets ; 
it  simply  appears  that  it  was  possible  for  the  fish  to  go  out  in  the  same 
way  they  got  in.  It  was  also  in  evidence  that  these  nets  were  frequent- 
ly disturbed  by  wind  and  storm,  and  at  such  times  so  disordered  that 
fish  escaped  over  the  top. 

Davis,  J.  Fish  are  fera^  naturae ;  yet,  "where  the  animals  or  other 
creatures  are  not  domestic,  but  are  ferje  naturae,  larceny  may,  notwith- 
standing, be  committed  of  them,  if  they  are  fit  for  food  of  man  and 
dead,  reclaimed  (and  known  to  be  so)  or  confined.  Thus  *  *  * 
fish  in  a  tank  or  net,  or  as  it  seems  in  any  other  enclosed  place  which 
is  private  property,  and  where  they  may  be  taken  at  any  time  at  the 
pleasure  of  the  owner  *  *  *  the  taking  of  them  with  felonious 
intent  will  be  larceny."  2  Russ.  Cr.  83.  "Fish  confined  in  a  tank  or 
net  are  sufficiently  secured."    2  Bishop  Cr.  Law,  §  775. 

The  trial  judge  seems  to  have  directed  the  jury  to  return  a  verdict 
of  "not  guilty"  on  the  theorj'  that  the  fish  must  have  been  confined  so 
that  there  was  absolutely  no  possibility  of  escape.  We  think  that  this 
doctrine  is  both  unnecessarily  technical  and  erroneous.  For  example, 
bees  in  a  hive  may  be  the  subject  of  larceny,  yet  it  is  possible  for  the 
bees  to  leave  the  hive  by  tlie  sam.e  place  at  which  they  entered.  To 
acquire  a  property  right  in  animals  ferae  naturse,  the  pursuer  must 
bring  them  into  his  power  and  control,  and  so  maintain  this  control  as 
to  show  that  he  does  not  intend  to  abandon  them  again  to  the  world 
at  large.  When  he  has  confined  them  within  his  own  private  enclosure 
where  he  may  subject  them  to  his  own  use  at  iiis  pleasure,  and  main- 
tains reasonable  precautions  to  prevent  escape,  tfiey  are  so  impressed 

243,  note  (17SS).     Compare  Fenuings  v.  Grenville,  1  Taunt.  241  (ISOS) ;    Ho- 
garth y.  Jackson,  Moo.  &  M.  58  (1827). 

The  American  custom  is  that  the  first  harpoon  in  the  whale  gives  title. 
Swift  V.  Gifford,  2  Uiw.  110,  Fed.  Cas.  No.  13,696  (1872).     Compare  Ghen  v. 
Rich  (D.  C.)  S  Fed.  159  (18S1). 
Big.Pers.I'kop. — 10 


146  ACQUISITION   OF   OWXEKSHIP  (Cll.  4 

with  his  proprietorship  tliat  a  felonious  taking  of  them  from  his  en- 
closure, whether  trap,  cage,  park,  net,  or  whatever  it  may  be,  will  be 
larceny.  For  such  cases,  as  is  clearly  shown  by  the  authorities  above 
quoted,  the  law  does  not  require  absolute  security  against  the  possi- 
bility of  escape,  and  none  of  the  authorities  cited  for  the  defendants 
in  error,  except  Norton  v.  Ladd,  5  N.  H.  203,  20  Am.  Dec.  573,  sus- 
tain their  contention.  Young  v.  Hichens,  6  Ad.  &  Ell.  N.  S.  606,  s.  c, 
51  E.  C.  L.  606,  is  not  applicable  to  this  case.  That  was  an  action  for 
the  conversion  of  fish  which  were  never  in  the  plaintiff's  net  but  had 
been  frightened  away  from  entering  into  the  plaintiff's  net  by  the  de- 
fendant and  caught  in  his  own  net. 

In  the  present  case  the  fish  were  not  at  large  in  Lake  Erie.  They 
were  confined  in  nets,  from  which  it  was  not  absolutely  impossible  for 
them  to  escape,  yet  it  was  practically  so  impossible;  for  it  seems  that 
under  ordinary  circumstances  few,  if  any,  of  the  fish  escape.  The  fish 
that  were  taken  had  not  escaped,  and  it  does  not  appear  that  they  would 
have  escaped,  or  even  that  they  probably  would  have  escaped.  They 
were  so  safely  secured  that  the  owners  of  the  nets  could  have  taken 
them  out  of  the  water  at  will  as  readily  as  the  defendants  did.  The 
possession  of  the  owners  of  the  nets  was  so  complete  and  certain  that 
the  defendants  went  to  the  nets  and  raised  them  with  absolute  assur- 
ance that  they  could  get  the  fish  that  were  in  them.  We  think,  there- 
fore, that  the  owners  of  the  nets,  having  captured  and  confined  the 
fish,  had  acquired  such  a  property  in  them  that  the  taking  of  them  was 
larceny." 


FERGUSON  V.  MILLER. 

(Supreme  Court  of  New  York,  1S2.3.     1  Cow.  243,  13  Am.  Dec.  519.) 

Certiorari  to  a  Justice's  Court.  Trespass,  by  Miller  against  Fergu- 
son, for  cutting  a  bee-tree,  standing  on  the  land  of  one  Jenkins.  The 
plaintiff  had  discovered  the  tree,  and  marked  it  with  the  initials  of  his 
name ;  and  a  witness  swore  that  Jenkins  gave  him  liberty  to  cut  the 
tree,  though  Jenkins  remembered  nothing  of  this  on  the  trial.  The 
defendant  traced  the  swarm  of  bees  to  the  same  tree,  cut  out  the  initials 
of  the  plaintiff's  name,  substituted  his  own,  and  felled  and  removed  the 
limb  of  the  tree,  where  the  bees  were,  under  a  subsequent  license  from 
Jenkins,  for  which  the  defendant  agreed  to  pay  him  50  cents.  On  motion 
for  a  nonsuit,  because  the  plaintilt  had  not  established  a  sufficient  prop- 
erty in  himself,  the  Justice  overruled  the  motion,  and  charged  the  jury, 
that  the  plaintiff  after  getting  permission  from  Jenkins  to  cut  the  tree, 

6  A.  caught  fish  and  put  them  in  a  cove  eight  feet  deep  and  covering  aboui 
two  acres  with  a  fence  across  its  mouth.  Held,  A.  cannot  maintain  trespass 
against  B.  for  talUng  these  fish.  Pollers  v.  Sollers,  77  Md.  14S,  26  Atl.  188, 
20  L.  K.  A.  94,  39  Am.  St.  Rep.  404  (1893). 


Sec.  1)  MERE    TAKING    OF   POSSESSION  147 

had  sufficient  property  in  the  bees  to  maintain  trespass  against  any  per- 
son for  taking  them  away.  The  jury  found  for  the  plaintiff,  on  which 
judgment  was  given. 

CuRiA.^  *  *  *  Admit  the  fact  that  Jenkins  gave  MiUer  hberty 
to  cut  the  tree  and  take  the  bees — that  did  not  give  him  a  title  to  the 
bees  till  he  had  taken  possession  of  them.  The  license  was  without 
consideration,  and  liable  to  be  revoked  at  pleasure.  Suppose  Jenkins, 
himself,  had  cut  the  tree  and  taken  the  bees:  can  it  be  pretended  that 
the  plaintiff  could  have  maintained  an  action  against  him  ?  The  plain- 
tiff had  neither  die  ownership  nor  the  possession.  The  utmost  extent 
of  his  right,  was  that  he  had  it  in  his  power  to  become  the  owner,  by 
taking  possession.  The  defendant  had  the  same,  and,  perhaps,  a  great- 
er right ;  as  the  license  to  him  may  have  been  a  revocation  of  the  for- 
mer license.  But  suppose  it  was  not,  then  the  two  parties  stood  on  an 
equal  footing ;  and  he  who  first  reduced  them  to  possession  became  the 
owner. 

Judgment  reversed.' 


GOFF  V.  KILTS. 
(Supreme  Court  of  New  York,  1S36.    15  Wend.  550.) 

Error  from  the  Madison  common  pleas.  Kilts  sued  Goff  in  a  justice's 
court  in  trespass  for  taking  and  destroying  a  swarm  of  bees  and  the 
honey  made  by  them.  The  swarm  left  the  hive  of  the  plaintiff,  flew 
off  and  went  into  a  tree  on  the  lands  of  the  Lenox  Iron  Company.  Th« 
plaintiff  kept  the  bees  in  sight,  followed  them,  and  marked  the  tree  iu 
which  they  entered.  Two  months  afterwards  the  tree  was  cut  down, 
the  bees  killed,  and  the  honey  found  in  the  tree  taken  by  the  defendant 
and  others.  The  plaintiff  recovered  judgment,  which  was  affirmed  by 
the  Madison  common  pleas.     The  defendant  sued  out  a  writ  of  error. 

Nelson,  J.*  Animals  ferse  naturae,  when  reclaimed  by  the  art  and 
power  of  man,  are  the  subject  of  a  qualified  property;  if  they  return 
to  their  natural  liberty  and  wildness,  without  the  animus  revertendi,  it 
ceases.  During  the  existence  of  the  qualified  property,  it  is  under  the 
protection  of  the  law  the  same  as  any  other  property,  and  every  inva- 
sion of  it  is  redressed  in  the  same  manner.  Bees  are  ferse  naturae,  but 
when  hived  and  reclaimed,  a  person  may  have  a  qualified  property  in 
them  by  the  law  of  nature,  as  well  as  the  civil  law.  Occupation,  that 
is,  hiving  or  enclosing  them,  gives  property  in  them.    They  are  now  a 

8  Part  of  the  opinion  is  omitted. 

■^  A.  found  a  bee  tree  and  was  cutting  it  down.  B.  interposed,  prevented  A. 
from  completinj,'  the  felling,  and  himself  completed  the  felling  and  took  the 
honey.  Held,  A.  is  entitled  to  judgment  against  B.  iu  an  action  of  trespass 
and  case  for  the  value  of  the  honey.    Adams  v.  Burton,  43  Vt.  36  (1S70). 

8  Part  of  the  opinion  is  omitted. 


14S  ACQUISITION  OF  OWNERSHIP  (Ch.  i 

common  species  of  property,  and  an  article  of  trade,  and  the  wildncss 
of  their  nature  by  experience  and  practice  has  become  essentially  sub- 
jected to  the  art  and  power  of  man.  An  unreclaimed  swarm,  like  all 
other  wild  animals,  belongs  to  the  first  occupant — in  other  words,  to 
the  person  who  first  hives  them ;  but  if  a  swarm  fly  from  the  hive  of 
another,  his  qualified  property  continues  so  long  as  he  can  keep  them 
in  sight,  and  possesses  the  power  to  pursue  them.  Under  these  cir- 
cumstances, no  one  else  is  entitled  to  take  them.  2  Black.  Comm.  393; 
2  Kent's  Comm.  394. 

The  question  here  is  not  between  the  owner  of  the  soil  upon  which 
the  tree  stood  that  included  the  swarm,  and  the  owner  of  the  bees : 
as  to  him,  the  owner  of  the  bees  would  not  be  able  to  regain  his 
property,  or  the  fruits  of  it  without  being  guilty  of  trespass.  But 
it  by  no  means  follows,  from  this  predicament,  that  tlie  right  to  the 
enjoyment  of  the  property  is  lost;  tliat  the  bees  therefore  become 
again  ferae  naturae,  and  belong  to  the  first  occupant.  If  a  domes- 
tic or  tame  animal  of  one  person  should  stray  to  the  enclosure  of 
another,  the  owner  could  not  follow  and  retake  it,  without  being 
liable  for  a  trespass.  The  absolute  right  of  property  notwithstand- 
ing, would  still  continue  in  him.  Of  this  there  can  be  no  doubt. 
So  in  respect  to  the  qualified  property  in  the  bees.  If  it  continued  in 
the  owner  after  they  hived  themselves,  and  abode  in  the  hollow  tree,  as 
this  qualified  interest  is  under  the  same  protection  of  law  as  if  abso- 
lute, the  like  remedy  existed  in  case  of  an  invasion  of  it.  It  cannot,  I 
think,  be  doubted,  that  if  the  property  in  the  swarm  continues  while 
within  sight  of  the  owner — in  other  words,  while  he  can  distinguish 
and  identify  it  in  the  air — that  it  equally  belongs  to  him  if  it  settles 
upon  a  branch  or  in  the  trunk  of  a  tree,  and  remains  there  under  his 
observation  and  charge.  If  a  stranger  has  no  right  to  take  the  swarm 
in  the  former  case,  and  of  which  there  seems  no  question,  he  ought  not 
to  be  ftermitted  to  take  it  in  the  latter,  when  it  is  more  confined  and 
within  the  control  of  the  occupant. 

It  is  said  that  owner  of  the  soil  is  entitled  to  the  tree  and  all  within 
it.  This  may  be  true,  so  far  as  respects  an  unreclaimed  swarm.  While 
it  remains  there  in  that  condition,  it  may,  like  birds  or  other  game, 
(game  laws  out  of  the  question,)  belong  to  the  owner  or  occupant  of  the 
forest,  ratione  soli.  According  to  the  law  of  nature,  where  prior  occu- 
pancy alone  gave  right,  the  individual  who  first  hived  tlie  swarm  would 
be  entitled  to  the  property  in  it ;  but  since  the  institution  of  civil  socie- 
ty, and  the  regulation  of  the  right  of  property  by  its  positive  law,  the 
forest  as  well  as  the  cultivated  field,  belong  exclusively  to  the  owner, 
who  has  acquired  a  title  to  it  under  those  laws.  The  natural  right  to 
the  enjoyment  of  the  sport  of  hunting  and  fowling,  wherever  animals 
ferse  naturae  could  be  found,  has  given  way,  in  tlie  progress  of  society, 
to  the  establishment  of  rights  of  property  better  defined  and  of  a  more 
durable  character.     Hence  no  one  has  a  right  to  invade  the  enclosure 


Sec.  1)  MEEE  TAKING    OF   POSSESSION  149 

of  anotlier  for  this  purpose.  He  would  be  a  trespasser,  and  as  such 
liable  for  the  game  taken.  An  exception  may  exist  in  the  case  of  nox- 
ious animals,  destructive  in  their  nature.  Mr.  Justice  Blackstone  says, 
if  a  man  starts  game  in  another's  private  grounds,  and  kills  it  there, 
the  property  belongs  to  him  in  whose  ground  it  is  killed,  because  it  was 
started  there,  the  property  arising  ratione  soli.  2  Black.  Comm.  419. 
But  if  animals  ferae  naturae  that  have  been  reclaimed,  and  a  qualified 
property  obtained  in  tliem,  escape  into  the  private  grounds  of  another 
in  a  way  that  does  not  restore  them  to  their  natural  condition,  a  differ- 
ent rule  obviously  applies.  They  are  then  not  exposed  to  become  the 
property  of  the  first  occupant.  The  right  of  the  owner  continues,  and 
though  he  cannot  pursue  and  take  them  without  being  liable  for  a  tres- 
pass, still  this  difficulty  should  not  operate  as  an  abandonment  of  the 
animals  to  their  former  liberty.  The  rights  of  both  parties  should  be 
regarded,  and  reconciled  as  far  as  is  consistent  with  a  reasonable 
'protection  of  each.  The  cases  of  Heermance  v.  Vernoy,  6  Johns.  5, 
and  Blake  v.  Jerome,  14  Johns.  406,  are  authorities  for  saying,  if  any 
were  wanted,  that  the  inability  of  the  owner  of  a  personal  chattel  to 
retake  it  while  on  the  premises  of  another,  without  committing  a  tres- 
pass, does  not  impair  his  legal  interest  in  the  property.  It  only  em- 
barrasses the  use  or  enjoyment  of  it.  The  owner  of  the  soil,  therefore, 
acquiring  no  right  to  the  property  in  the  bees,  the  defendant  below  can- 
not protect  himself  by  showing  it  out  of  the  plaintiff'  in  that  way.  It 
still  continues  in  him,  and  draws  after  it  the  possession  sufficient  to 
maintain  this  action  against  a  third  person,  who  invades  it  by  virtue  of 
no  other  claim  than  that  derived  from  the  law  of  nature.  This  case 
is  distinguishable  from  the  cases  of  Gillet  v.  Mason,  7  Johns.  16,  and 
Ferguson  v.  Miller,  1  Cow.  243,  13  Am.  Dec.  519.  *  *  *  For 
these  reasons  I  am  of  opinion  that  the  judgment  of  the  court  below 
should  be  affirmed. 
Judgment  affirmed.* 

9  A.  had  in  his  possession  a  sea  lion  identifiable  by  certain  marks.  The 
animal  escaped.  Two  weelis  later  it  was  captured  by  B..  seventy  miles  away. 
B.  refused  to  redeliver  it  to  A.  Held,  A.  cannot  maintain  trover  asainst  B. 
Mullett  V.  Bradley.  24  Misc.  Rep.  695,  5.3  N.  T.  Supp.  7S1  (1S9S).  Compare 
Manning  v.  Mitcherson,  69  Ga.  447.  47  Am.  Kep.  764  (1SS2) ;  Bartlett  v.  Budd, 
1  Low.  22.3,  Fed.  Cas.  Xo.  1075  (18GS). 

If  A.,  without  the  license  of  B..  Ijill  or  trap  wild  animals  upon  the  land  of 
B.,  the  animals  are  the  property  of  B.  Blades  v.  Higgs,  11  H.  of  L.  G21  (1865). 
Compare  Resroth  v.  Coon,  15  R.  I.  35,  23  Atl.  37,  2  Am.  St.  Rep.  803  (1SS5). 

As  to  the  acquisition  of  ownership  in  wrecks,  see  Constable's  Case,  5  Co. 
106  a  (1603) ;  Hamilton  v.  Davis.  5  Burr.  2732  (1771) ;  Baker  7.  Hoag.  7  N. 
T.  555.  59  Am.  Dec.  431  (1853) ;   Murphy  v.  Dunham  (D.  C.)  38  Fed.  503  (1SS9). 

The  acquisition  of  ownership  in  domestic  animals  which  have  strayed  from 
their  owners  is  regulated  by  statute. 


150  ACQUISITION  OF  OWNERSHIP  (Ch.  4 

SECTION  2.— ADVERSE  POSSESSION 


CHAPIN  et  al.  v.  FREELAND. 

(Supreme  Judicial  Court  of  Massachusetts,  1S86.    142  Mass.  383,  8  N.  E.  128, 

56  Am.  Rep.  701.) 

Holmes,  J.^°  This  is  an  action  of  replevin  for  two  counters.  There 
was  evidence  that  they  belonged  to  the  defendant  in  1867,  when  one 
Warner  built  a  shop,  put  the  counters  in,  nailed  them  to  the  floor, 
and  afterwards,  on  January  2,  1871,  mortgaged  the  premises  to  one 
De  Witt.  In  April,  1879,  De  Witt's  executors  foreclosed,  and  sold 
the  premises  to  the  plaintiffs.  The  defendant  took  the  counters  from 
the  plaintiff's'  possession  in  1881.  The  court  found  for  the  defendant. 
Considering  the  bill  of  exceptions  as  a  whole,  we  do  not  understand 
this  general  finding  to  have  gone  on  the  ground  either  of  a  special 
finding  that  the  counters  remained  chattels  for  all  purposes,  and  were 
not  covered  by  the  mortgage.  Carpenter  v.  Walker,  140  Mass.  416, 
5  N.  E.  160,  or  that  there  was  a  fraudulent  concealment  of  the  cause 
of  action,  within  the  Gen.  Sts.  c.  155,  §  12  (Pub.  Sts.  c.  197,  §  14).  But 
we  understand  the  court  to  have  ruled  or  assumed  that,  although  the 
statute  should  have  run  in  favor  of  Warner  or  De  Witt  before  the 
transfer  to  the  plaintiffs,  that  circumstance  would  not  prevent  the  de- 
fendant from  taking  possession  if  she  could,  or  entitle  the  plaintiffs  to 
sue  her  for  doing  so,  if  she  was  the  original  owner. 

A  majority  of  the  court  are  of  opinion  that  this  is  not  the  law,  and 
that  there  must  be  a  new  trial.  We  do  not  forget  all  that  has  been 
said  and  decided  as  to  the  statute  of  limitations  going  only  to  the 
remedy,  especially  in  cases  of  contract.  W^e  do  not  even  find  it  nec- 
essary to  express  an  opinion  as  to  what  would  be  the  effect  of  a  stat- 
ute like  ours,  if  a  chattel,  after  having  been  held  adversely  for  six 
years,  were  taken  into  another  jurisdiction  by  the  originally  wrongful 
possessor,  although  all  the  decisions  and  dicta,  so  far  as  we  know,  agree 
that  the  title  would  be  deemed  to  have  passed.  Cockfield  v.  Hudson, 
1  Brev.  (S.  C.)  311;  Howell  v.  Hair,  IS  Ala.  194;  Jones  v.  Jones, 
18  Ala.  248,  253 ;  Clark  v.  Slaughter,  34  Miss.  65 ;  Winburn  v.  Coch- 
ran, 9  Tex.  123;  Preston  v.  Briggs,  16  Vt.  124,  130;  Baker  v.  Chase, 
55  N.  H.  61,  63;  Campbell  v.  Holt,  115  U.  S.  620,  623,  6  Sup.  Ct. 
209,  29  L.  Ed.  483.  What  we  do  decide  is  that,  where  the  statute  would 
be  a  bar  to  a  direct  proceeding  by  the  original  owner,  it  cannot  be  de- 
feated by  indirection  within  the  jurisdiction  where  it  is  law.     If  he 

10  The  statement  of  facts  and  part  of  Justice  Field's  dissenting  opinion 
are  omitted. 


Sec.  2)  ADVERSE   POSSESSION  151 

cannot  reple\'y,  he  cannot  take  with  his  own  hand.  A  title  which  will 
not  sustain  a  declaration  will  not  sustain  a  plea. 

It  is  true  that  the  statute,  in  terms,  only  limits  the  bringing  of  an 
action.  But  whatever  importance  may  be  attached  to  that  ancient  form 
of  words,  the  principle  we  lay  down  seems  to  us  a  necessary  con- 
sequence of  the  enactment.  And  a  similar  doctrine  has  been  applied  to 
the  statute  of  frauds.  Carrington  v.  Roots,  2  M.  &  W.  248.  See  King 
V.  Welcome,  5  Gray,  41. 

As  we  understand  the  statutory  period  to  have  run  before  the  plain- 
tiffs acquired  the  counters,  we  do  not  deem  it  necessary  to  consider 
what  would  be  the  law  if  the  plaintiffs  had  purchased  or  taken  the 
counters,  within  six  years  of  the  original  conversion,  from  the  person 
who  first  converted  them,  and  the  defendant  had  taken  them  after  the 
action  against  the  first  taker  had  been  barred,  but  within  six  years  of 
the  plaintiff's'  acquiring  them.  We  regard  a  purchaser  from  one  against 
whom  the  remedy  is  already  barred  as  entitled  to  stand  in  as  good  a 
position  as  his  vendor.  Whether  a  second  wrongful  taker  would  stand 
differently,  because  not  privy  in  title,  we  need  not  discuss.  See  Leon- 
ard V.  Leonard,  7  Allen,  277;  Sawyer  v.  Kendall,  10  Cush.  241 ;  Nor- 
cross  V.  James,  140  Mass.  188,  189,  2  N.  E.  946;  Co.  Lit.  114  b,  121  b. 

Exceptions  sustained.^' 

Field,  J.    I  am  unable  to  assent  to  the  opinion  of  the  court.    *    *    * 

As  the  plaintiff's  first  took  possession  of  the  counters  as  their  own 
some  time  after  the  foreclosure  of  the  mortgage  in  1879,  the  statute 
of  limitations  would  have  been  no  defence  to  them  if  the  defendant 
had  brought  trover  against  them  in  1881,  when  she  took  possession 
of  the  counters;  their  only  defence  would  have  been  title  in  themselves 
derived  from  their  vendors,  and  this  title  rests  ultimately  upon  the 
possession  of  Warner.  The  second  request,  as  applicable  to  the  case, 
is  in  effect  that,  if  Warner  took  the  counters  tortiously,  and  kept 
them  attached  to  his  building  more  than  six  years,  the  defendant  lost 
her  right  of  property  in  the  counters.  It  is  not  stated  in  the  request, 
that  Warner's  possession,  to  effect  a  change  of  title,  must  have  been 
either  known  to  the  defendant  or  open  and  notorious,  and  must  have 
been  under  a  claim  of  right;  and  that  his  possession  was  of  this 
character  is  not  necessarily  to  be  inferred  from  the  evidence.  The 
eft'ect  of  the  statute  of  limitations  of  real  actions  upon  the  acquisi- 
tion of  title  to  real  property  is  carefully  discussed  in  Langdell  on  Eq. 
PI.  §  119  et  seq.  Our  statute  of  limitations  of  real  actions  provides 
that  "no  person  shall  commence  an  action  for  the  recovery  of  lands. 


"Ace:  Howell  v.  Hair,  15  Ala.  194  (1S49) :  Hicks  v.  Fluit,  21  Ark.  4G3 
(1S60) ;  Smart  v.  Baugh,  3  J.  J.  Marsh.  (Ky.)  303  (1830) ;  Clark  v.  Slaughter, 
34  Miss.  65  (1S57) ;    Winburn  v.  Cochran,  9  Tex.  IL'3  (1S52). 

Contra,  Miller  v.  Dell,  [1891]  1  Q.  B.  468;  Goodwin  v.  Morris,  9  Or.  322 
(ISSl). 

See  Kirkman  v.  Philips's  Heirs,  54  Tenn.  (7  Heisk.)  222  (1872). 


152 


ACQUISITION   OF   OWNERSHIP 


(Ch.4 


nor  make  an  entry  thereon,  unless  within  twenty  years  after  the  right 
to  bring  such  action  or  to  make  such  entry  first  accrued,  or  within 
twenty  years  after  he,  or  those  from,  by,  or  under  whom  he  claims, 
have  been  seised  or  possessed  of  the  premises,  except  as  is  herein- 
after provided."  Pub.  Sts.  c.  196,  §  1.  *  *  *  It  follows  that,  with 
certain  exceptions  not  necessary  to  be  noticed,  after  a  disseisin  con- 
tinued for  twenty  years,  or  in  other  words  after  twenty  years  from 
the  time  when  the  right  to  bring  a  writ  of  entry  or  to  enter  upon  the 
land  first  accrued,  the  former  owner  of  a  freehold  can  neither  main- 
tain any  action  to  recover  possession,  nor  enter  upon  the  land,  nor, 
without  an  entry,  convey  it;  and  as  all  remedy,  either  by  action  or 
by  taking  possession,  is  gone,  his  title  is  held  to  have  been  lost.  The 
effect  of  the  statute  has  been  to  extinguish  the  right,  as  well  as  to 
bar  the  remedy,  and  this  is  the  construction  given  to  the  English  St. 
of  3  &  4  Wm.  IV,  c.  27.  Our  statute  of  limitations  of  personal  ac- 
tions was  taken  from  the  St.  of  21  Jac.  I,  c.  16,  and  this  statute  has 
been  held  not  to  extinguish  the  right,  but  only  to  bar  the  remedy.  Ow- 
en V.  De  Beauvoir,  16  M.  &  W.  547,  5  Exch.  166;  Dawkins  v.  Penrhyn, 
6 -Ch.  D.  318,  4  App.  Cas.  51;  Dundee  Harbour  v.  Dougall,  1  ]\Iacq. 
317,  321 ;  In  re  Alison,  11  Ch.  D.  284. 

Section  1  of  the  Pub.  Sts.  c.  197,  declares :  "The  following  actions 
shall  be  commenced  within  six  years  next  after  the  cause  of  action  ac- 
crues, and  not  afterwards,  *  *  *  actions  of  replevin,  and  all  other 
actions  for  taking,  detaining,  or  injuring  goods  or  chattels."  There  is 
no  statute,  and  no  law,  prohibiting  the  owner  of  personal  chattels  from 
peaceably  taking  possession  of  them  wherever  he  may  find  them,  and  the 
technical  law  of  seisin  and  disseisin  was  never  applied  to  personal  chat- 
tels. It  is  established  in  this  commonwealth  that  a  debt  barred  by  the 
statute  of  limitations  of  the  place  of  the  contract  is  not  extinguished. 
The  statute  only  bars  the  remedy  by  action  within  the  jurisdiction 
where  the  defendant  has  resided  during  the  statutory  period.     *     *     * 

There  is  nothing  in  the  statute  which  suggests  any  distinction  be- 
tween actions  to  recover  chattels  and  actions  to  recover  debts,  and  it 
does  not  purport  to  be  a  statute  relating  to  the  acquisition  of  title  to 
property,  but  a  statute  prescribing  the  time  within  which  certain  ac- 
tions shall  be  brought.  There  is  not  a  trace  to  be  found  in  our  re- 
ports of  the  doctrine  that  possession  of  chattels  for  the  statutory  period 
of  limitations  for  personal  actions  creates  a  title,  and  I  can  find  no  such 
doctrine  in  the  English  reports,  or  in  the  reports  of  a  majority  of  the 
courts  of  the  States  of  this  country.     *     *     * 

These  cases  show  that  the  statute  of  limitations  of  personal  actions 
is  construed  with  reference  to  the  particular  action  brought,  and  in- 
dicate that  there  is  no  change  of  title  in  property,  although  the  time 
for  bringing  an  action  of  trover  has  expired.  I  think  that  the  subject 
of  the  acquisition  of  title  to  personal  chattels  by  adverse  possession  can 
best  be  dealt  with  by  the  Legislature,  if  it  is  thought  necessary  to  es- 


Sec.  2)  ADVERSE    POSSESSION  153 

tablish  such  a  rule  of  law ;    and  that  it  was  not  the  intention  of  our 
statute  of  ILmitations  of  personal  actions  to  extinguish  rights  or  titles. 

There  is  much  force  in  the  suggestion,  that,  if  the  defendant  could 
not  have  recovered  the  counters  by  action  at  the  time  she  took  posses- 
sion, she  ouglit  not  to  be  permitted  to  take  them  from  the  possession 
of  the  plaintiffs  by  force  or  fraud ;  but  it  is  not  found  in  the  case  that 
she  took  them  by  force  or  fraud,  and  the  request  does  not  assume  this ; 
and  I  think  that  the  defendant,  at  the  time  she  took  possession,  could 
have  recovered  these  counters  of  the  plaintiff's  by  action,  as  the  statute 
of  limitations  did  not  begin  to  run  in  favor  of  the  plaintiffs  until 
they  took  possession,  which  was  at  least  as  late  as  1879;  and  it  is  not 
found  that  the  plaintiff's'  vendors  had  any  title  which  they  could 
convey  to  the  plaintiffs.  I  think  the  second  and  third  requests  ought 
not  to  have  been  given. 


BEADLE  V.  HUNTER  &  GARRETT. 
(Court  of  Appeals  of  South  Carolina,  1S48.     3  Strob.  331.) 

[One  William  Dollar  in  1841  conveyed  by  deed  certain  slaves  to 
the  plaintiff.  Dollar  kept  possession  and  shortly  thereafter  denied 
the  plaintiff''s  title  and  claimed  ownership.  In  1843  Dollar  sold  them 
to  the  defendants.    In  1846,  the  plaintiff'  brought  trover.] 

The  jury  were  told  that  if  Dollar  had  been  the  defendant,  it  might 
be,  that  notwithstanding  his  acknowledgment  of  the  20th  of  Sept., 
1841,  he  would  set  up  the  statute  of  limitations.  For  he  certainly 
asserted  an  adverse  claim  to  the  property,  and  that  too,  within  the 
knowledge  of  the  plaintiff,  very  soon  afterwards,  certainly  before  the 
end  o'f  1841.  From  that  time,  four  years  would  have  expired  before 
suit  brought.  But  he  was  not  the  defendant,  and  the  question  was, 
whether  the  statute  would  protect  the  present  defendants.  They  got 
possession  in  1843 — the  bar  of  the  statute,  four  years,  was  not  com- 
plete when  the  suit  was  brought,  February,  1846.  They  could  not 
connect  their  possession  with  that  of  Dollar,  so  that  by  linking  one 
with  the  other,  the  statutory  period  could  be  made  out. 

[Verdict  was  for  plaintiff'  and  defendant  moved  for  a  new  trial.] 

O'Neall,  J.  This  Court  is  satisfied  with  the  ruling  of  the  Judge 
below,  on  all  the  points  made  in  the  case,  and  generally  for  the  reason 
which  he  has  given. 

The  only  matter  on  which  it  seems  to  be  necessary  to  expand  his 
views,  is  in  reference  to  the  statute  of  limitations. 

The  case  of  King  v.  Smith,  Rice,  10,  is  full  to  the  point,  that 
possessions  short  of  the  statutory  period  cannot  be  linked  together, 
so  as  to  make  out  time  enough  to  complete  the  bar  of  the  statute, 
in  an  action  for  the  recovery  of  land.     I  know  no  reason  why  there 


154  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

should  be  a  difference  in  relation  to  personalty.  It  is  true,  a  difference 
between  personal  and  real  estate  has  been  recognised,  as  to  the  pro- 
tection which  the  infancy  of  some  of  the  parties  gives  to  the  others. 
But  I  regret  that  such  a  distinction  was  ever  made.  True  policy  re- 
quires that  there  should  be  no  difference  between  real  and  personal 
estate.  This  is  especially  the  case  in  this  State,  where  personal  prop- 
erty is  often  so  much  more  valuable  than  land.  Indeed  every  day's 
experience  satisfies  me,  that  land  and  slaves  should  be  placed  upon  the 
same  footing,  in  every  respect. 

But  our  statute  places  the  matter,  when  its  words  are  attended  to, 
out  of  dispute.  The  action  of  trover  is  to  be  brought  "within  four 
years  next  after  the  cause  of  such  action,  or  suit,  and  not  after."  The 
plea  is  "actio  non  accrevit  infra  quatuor  annos."  When  did  the  plain- 
tiff have  cause  of  action  against  the  defendants?  Certainly  not  until  he 
demanded  from  them  the  slaves,  or  they  had  used  or  sold  them.  If 
he  had  sued  them,  and  relied  upon  the  conversion  by  Dollar,  in  the 
sale  of  them,  he  would  have  been  nonsuited.  For  Dollar's  conver- 
sion would  not  have  been  their's.  This  is  decisive  of  the  question, 
when  did  the  statute  begin  to  run?  Again,  suppose  Dollar  had  con- 
verted the  slaves  one  year  before  he  sold  to  defendant,  that  gave  him  no 
title,  and  his  conveyance  could  not  confer  any  title  to  the  defendants. 
They  stood  in  relation  to  the  plaintiff',  and  his  property  thus  coming 
into  their  possession,  as  mere  tort  feasors,  without  title.  There  is 
therefore  no  possible  mode  by  which  they  can  be  benefited  by  Dollar's 
possession,  after  he  had  informed  the  plaintiff  that  he  claimed  against, 
and  not  under  him. 

It  is  possible,  and  even  probable,  if  Dollar  had  retained  possession 
four  years  after  such  notice,  that  the  statute  would  have  protected 
him ;  and  then,  if  he  had  sold  to  the  defendants,  his  possession  would 
have  protected  them.  For  then  it  would  have  been  title — a  title  con- 
ferred by  law  from  the  lapse  of  time ;  and  to  have  the  benefit  of  it, 
it  would  not  have  been  necessary  for  the  defendants  to  plead  the 
statute.    It  could  have  been  given  in  evidence  under  the  general  issue. 

The  motion  for  a  new  trial  is  dismissed.^^ 

12  Ace.  Miller  v.  Dell,  [1891]  1  Q.  B.  468. 


Sec.  2)  ADVERSE   POSSESSION  155 


GATLIN  V.  VAUT  et  al. 

(United  States  Court  of  Appeals  for  the  Indian  Territory,  1906.     6  Ind.  T. 

254,  91  S.  W.  38.) 

Action  by  Fannie  Gatlin  against  A.  Vaut  and  another.  From  a 
judgment  for  defendants,  plaintiff  appeals.     Reversed. 

This  is  an  action  of  replevin,  instituted  on  September  19,  1904,  by 
the  appellant,  Fannie  Gatlin,  against  the  appellees  for  the  recovery  of 
two  mules.  The  amended  complaint  is  as  follows,  omitting  formal 
parts:  "That  on  the  first  day  of  March,  1901,  plaintiff  was  the  owner 
and  in  the  possession  of  said  mules  and  residing  near  Foster,  in  the 
Chickasaw  Nation;  that  on  said  date  said  mules  were  stolen  out  of 
the  possession  of  said  plaintiff  and  driven  to  the  state  of  Texas,  by 
way  of  Ardmore,  Indian  Territory ;  that  plaintiff  at  once  advertised 
by  postal  card  and  public  notice  the  fact  that  said  mules  had  been 
stolen.  *  *  *  Plaintiff  further  states  that  in  the  month  of  No- 
vember, 1902,  the  defendants,  A.  Vaut,  and  Clarence  Vaut,  came  into 
the  possession  of  the  said  span  of  mules  at  Ft.  Worth,  in  the  state  of 
Texas,  but  from  whom  the  plaintiff  is  unable  to  state."  A  demurrer 
was  interposed  to  the  complaint,  on  the  ground  that  the  complaint 
.shows  that  the  plaintiff  has  been  out  of  possession  of  the  property 
for  more  than  three  years,  and  does  not  allege  any  fraud  or  conceal- 
ment on  behalf  of  the  defendants,  and  especially  pleading  the  statute 
of  limitations.  At  the  hearing  of  the  demurrer,  the  plaintiff'  admitted 
that  there  had  boen  no  fraud  or  improper  conduct  on  the  part  of  the 
defendants,  and  the  court  thereupon  sustained  the  demurrer  and  en- 
tered judgment  for  the  defendants. 

Clayton,  J.'^  (after  stating  the  facts).  The  only  question  presented 
here  is,  did  the  court  err  in  sustaining  the  demurrer?  The  demurrer 
was  sustained,  on  the  ground  that  the  complaint  affirmatively  shows 
that  the  plaintiff  had  been  out  of  possession  of  the  property  for  more 
than  three  years.  Actions  for  the  recovery  of  personal  property  must 
be  brought  within  three  years.  *  *  *  As  before  stated,  replevin 
must  be  brought  within  three  years.  But  section  4502,  Mansf.  Dig. 
(Ind.  Ter.  Ann.  St.  1899,  §  2969),  provides :  "If  any  person  by  leav- 
ing the  county,  absconding  or  concealing  himself,  or  any  other  im- 
proper act  of  his  own,  prevent  the  commencement  of  any  action  in  this 
act  specified,  such  action  may  be  commenced  within  the  times  respec- 
tively limited  after  the  commencement  of  such  action  shall  have  ceased 
to  be  so  prevented." 

The  complaint  not  only  does  not  allege  the  nonexistence  of  any 
ground  for  avoiding  the  bar,  but  avers  that  the  property  was  stolen 
and  removed  from  the  jurisdiction  of  the  court,  which  fact,  if  estab- 

13  I'art  of  tlie  opinion  is  omitted. 


156  ACQUISITION   OF   OWNERSHIP  (CIl.  4 

lished,  would  avoid  the  bar  during  such  time  as  the  property  was  un- 
lawfully concealed.  Wood,  Limitations,  §  249.  The  reported  cases 
involving  the  question  here  raised  are  few;  and  none,  so  far  as  we 
have  been  able  to  find,  are  exactly  in  point.  In  all  of  them  where  the 
statute  has  been  held  to  bar  a  recovery,  the  defendant  (or  tlie  defend- 
ant and  his  grantors)  was  shown  to  have  been  in  the  peaceable,  open, 
and  notorious  possession  of  the  property  for  the  time  named  by  the 
statute.  In  none  of  them  was  it  held  that  tlie  thief's  possession, 
especially  where  he  secreted  the  property,  could  be  tacked  to  that  of 
the  defendant  in  order  to  complete  the  bar.  We  do  not  mean  to  sug- 
gest that  a  thief  could  not,  in  any  event,  plead  the  statute  in  replevin. 
If  he  had  held  the  property  openly  and  notoriously  in  the  community 
where  the  larceny  occurred,  he  could  undoubtedly  do  so,  not  so  much 
because  he  was  entitled  to  the  protection  afforded  by  the  statute,  but 
because  of  the  laches  of  the  plaintiff.  But  where  he  conceals  the 
property,  and  removes  both  it  and  his  person  from  the  jurisdiction 
of  the  court,  and  so  long  as  such  acts  continue,  as  against  him  the 
running  of  the  statute  is  certainly  suspended.     *     *     * 

We  therefore  hold  that  the  statute  of  limitations  as  to  personal  prop- 
erty in  the  hands  of  a  thief  who  has  removed  it  from  the  vicinity  of 
the  owner  or  secreted  it  from  him  does  not  begin  to  run  until  he  re- 
turns the  property  to  that  vicinity,  or  openly  and  notoriously  holds 
it,  so  that  the  owner  may  have  a  reasonable  opportunity  of  knowing 
its  whereabouts  and  of  asserting  his  title.  And  when  he  does  this, 
the  statute  begins  to  run,  although  tlie  proof  may  show  it  to  have  been 
stolen  property,  not  on  the  theory  that  the  thief  is  to  be  protected, 
but  because  of  the  laches  of  the  owner  in  not  asserting  his  title  for 
so  long  a  period  as  the  statute  gives  him.  A  grantor  can  convey  no 
better  title  than  he  has  himself ;  and  if  the  statute  has  not  begun  to 
run,  his  grantee  can  claim  nothing  by  virtue  of  possession.  If  the 
thief,  after  having  concealed  the  property,  has  done  nothing  in  rela- 
tion to  it  to  start  the  statute  in  his  favor,  his  grantee  cannot  tack  the 
thief's  possession,  or  any  part  of  it,  to  fill  out  his  unexpired  time.  It 
is  otherwise  if  the  statute  began  to  run  while  the  property  was  in  the 
hands  of  the  thief.  Then  the  purchaser  may  tack  to  his  unexpired 
time,  the  time  the  property  was  in  the  thief's  possession  after  the 
statute  began  to  run.^*  If  the  statute  did  not  begin  to  run  while  the 
property  was  in  the  possession  of  the  thief,  and  if  it  were  bought  by 
an  innocent  purchaser,  it  commenced  at  the  time  the  purchaser  took 
possession  by  virtue  of  the  sale.  And  if  the  buyer  be  not  an  innocent 
purchaser,  if  he  knew  it  to  be  stolen  property,  he  was  but  the  receiver 
of  stolen  property,  and  the  statute  would  not  begin  to  run  as  to  him 

14  Ace:  Hicks  v.  Fluit,  21  Ark.  4C3  (1S60) ;  Dragoo  v.  Cooper,  9  Bush  (Ky.) 
629  (1873).  Compare  Girault  v.  Zuntz,  15  La.  Ann.  6S4  (1860).  See,  also. 
Bohannon  v.  Chapman,  17  Ala.  696  (1850) ;  Kewcombe  v.  Leavitt,  22  Ala.  631 
(1853). 


Sec.  2)  ADVERSE   POSSESSION  157 

until  he  should  have  done  with  it  what  a  thief  is  required  to  do  in  or- 
der to  bring  it  within  the  operation  of  the  statute. 

The  deiTiurrer  admits  that  the  property  was  stolen ;  that  but  for  the 
statute  the  title  and  right  of  possession  is  in  the  plaintiff;  that  the  de- 
fendant has  not  been  in  possession  of  it  himself  long  enough  to  satisfy 
the  provision  of  the  statute.  Whether  he  bought  from  the  thief  or 
some  other  person,  and  if  from  the  thief  whetlier  or  not  he  had  done 
the  things  necessary  to  start  the  statute,  does  not  appear,  and  there- 
fore, the  complaint  does  not  allege  a  case  within  the  statute ;  and  it 
is  the  law  that  the  statute  of  limitations  is  defensive,  and  when  from 
the  complaint  it  does  not  appear  that  the  suit  is  barred,  the  defendant 
must  plead  it.     *     *     * 

And  therefore  the  demurrer  should  have  been  overruled,  and  the 
defendants  required  to  file  answer,  or  judgment  entered  for  plaintiff. 

For  the  error  above  specified,  the  judgment  of  the  court  below  is 
reversed,  and  the  cause  remanded,  with  directions  to  overrule  the  de- 
murrer, and  proceed  in  accordance  with  this  opinion. 


BRYAN  et  ux.  v.  WEEMS. 
(Supreme  Court  of  Alabama,  1856.     29  Ala.  423,  65  Am.  Dee.  407.) 

[In  1844  certain  slaves  belonging  to  a  trust  estate  of  which  the 
plaintiff  was  a  beneficiary  were  taken  by  the  defendant  as  his  own.  In 
1850,  but  after  the  expiration  of  the  six  year  statute  of  limitations,  the 
plaintiff'  brought  this  action  in  equity  to  recover  the  slaves  and  their 
offspring  born  during  the  six  years.  The  Chancellor  dismissed  the 
plaintiff's  bill.     Appeal.] 

Stone,  J.^^  *  *  '•'  It  will  be  seen  that  we  have  assimilated  the 
complainant's  right  to  relief  in  this  case  to  the  trustee's  right  to  main- 
tain detinue.  If,  at  the  time  the  bill  in  this  case  was  filed,  Green,  the 
trustee,  had  instituted  his  action  of  detinue  or  trover  for  the  slaves, 
against  Sledge,  the  executor,  the  six  years  statute,  if  pleaded,  would 
have  barred  either  action,  not  only  as  to  the  slaves  bequeathed  by  the 
will,  but  also  as  to  the  offspring  of  the  females,  born  after  the  adverse 
holding.  Morris  v.  Peregoy,  7  Grat.  (Va.)  373;  White  v.  Martin,  1 
Port.  215,  26  Am.  Dec.  365. 

\\'hen  defendant's  right  to  property  is  establislicd  by  a  successful  in- 
terposition of  the  plea  of  the  statute  of  limitations,  it  relates  back  to 
the  time  of  the  first  taking,  and  carries  with  it  all  the  intermediate  prof- 
its, and  the  increase  of  the  females  while  in  the  adverse  possession  of 
such  defendant,  unless,  as  to  such  increase,  some  act  be  done  before 
the  bar  against  recovery  of  the  mother  is  perfected,  which  prevents  the 

15  Parts  of  the  opinions  of  Rice,  C.  J.,  and  Stone,  J.,  are  omitted. 


158  ACQUISITION   OF  OWNERSHIP  (Cll.  4 

operation  of  this  rule.  Partus  sequitur  ventrem.  To  hold  otherwise, 
would  lead  to  strange  results  in  the  case  of  female  slaves.  An  adverse 
holding  of  six  years  would  vest  the  title  in  the  holder.  During  the 
time  she  was  adversely  held,  she  may,  at  intervals,  have  given  birth 
to  children ;  she  and  the  children  all  the  time  remaining  together,  out 
of  the  possession  of  the  claimant.  She  may  have  given  birth  to  an  in- 
fant within  a  very  short  time  before  the  completion  of  the  six  years. 
According  to  the  argument,  all  claim  to  the  mother  would  be  forfeited, 
while  to  bar  the  right  to  recover  her  child  would  require  another  pe- 
riod of  near  six  years. 

Another  illustration  may  serve  to  present  this  argument  in  a  stronger 
light.  Suppose  the  property  adversely  held  consist  of  domestic  ani- 
mals, who  multiply  at  an  early  age,  and  rapidly.  Before  the  six  years 
expire,  the  females,  in  all  probability,  will  have  increased  abundantly ; 
and  perhaps  at  no  point  of  coming  time,  will  there  be  a  female  that 
has  reached  the  age  of  six  years,  without  yielding  her  increase.  If 
the  offspring  do  not  follow  the  mother  as  an  incident,  but  each  suc- 
cessive scion  must  itself  be  adversely  held  for  the  term  of  six  years  be- 
fore the  statute  runs,  unless,  before  its  birth,  the  parent  stock  had  ex- 
isted and  been  adversely  held  for  a  like  period,  the  entire  interest  of 
the  former  owner  would  not  probably  be  extinguished  in  any  conceiva- 
ble number  of  years.  This  point  was  not  raised  in  argument ;  but  we 
have  felt  it  our  duty  to  notice  it,  as  the  court  is  not  unanimous.    *    *    * 

The  decree  of  the  chancellor  is  affirmed. 

Rice,  C.  J.  *  *  *  The  legal  effect  of  that  part  of  that  statute, 
is  not,  in  my  opinion,  what  my  brethren  have  pronounced  it  to  be  in 
the  opinion  just  delivered.  They  hold,  that  it  bars  the  complainants 
as  to  slaves  who  were  not  six  years  old  when  this  suit  was  commenced, 
and  who  had  not  been  held  adversely  for  six  years,  and  who  were  born 
of  a  mother  who  had  not  been  held  adversely  for  six  years  at  the  time 
of  their  birth.     I  cannot  assent  to  that  position. 

Where  slavery  exists,  the  children  of  a  female  slave  belong  to  him 
who,  at  the  time  of  their  birth,  was  the  general  and  absolute  owner 
of  their  mother.  The  children  born  of  her  whilst  she  is  in  the  pos- 
session of  an  adverse  holder,  but  before  the  adverse  holding  has  con- 
tinued six  years,  are  as  completely  the  property  of  the  person  who, 
at  the  time  of  their  birth,  is  the  absolute  owner  of  their  mother,  as 
if  they  had  been  born  whilst  she  was  in  the  actual  possession  of  that 
absolute  owner.  The  children  born  of  her  after  the  adverse  holder 
has,  by  an  adverse  possession  of  six  years,  acquired  the  tide  to  her, 
belong  to  the  adverse  holder.  The  statute  of  limitations  has  no  ef- 
fect whatever  upon  the  title  of  the  true  owner  to  the  mother,  until 
she  has  been  in  the  adverse  possession  of  another  for  the  full  period 
of  six  years.  So  far  as  that  statute  is  concerned  her  children,  as  soon 
as  they  are  born,  are,  in  legal  contemplation,  as  separate  and  distinct 
from  her,  as  if  in  fact  they  were  not  in  any  wise  related  to  her.    Each 


Sec.  2)  ADVERSE   POSSESSION  159 

child,  as  soon  as  bom,  is  a  personal  chattel,  separate  and  distinct  from 
its  mother,  and  from  every  other  child.  The  detention  of  each  child 
born  before  the  mother  has  been  adversely  held  for  six  years,  is  a  new, 
separate,  and  distinct  cause  of  action,  which  the  true  owner  may  en- 
force in  a  separate  and  distinct  suit.  W'ittick  v.  Traun,  27  Ala.  562. 
62  Am.  Dec.  778.  The  cause  of  action  for  the  detention  of  a  child 
could  not  possibly  accrue  before  it  was  born.  The  statute  of  limita- 
tions does  not  commence  running  against  a  cause  of  action  before  it 
accrues.  One  separate  and  distinct  cause  of  action  is  not  barr-ed  by 
that  statute,  merely  because  another,  which  accrued  at  a  different  time, 
is  barred.  That  statute  does  not  give  to  the  adverse  possessor  title  to 
a  slave  which  has  neither  been  held  adversely  for  six  years,  nor  been 
born  of  a  mother  who  had  been  held  adversely  for  six  years  before 
its  birth.  In  other  words,  to  give  title  to  a  slave  to  an  adverse  pos- 
sessor, under  the  statute  of  limitations,  it  is  at  least  essential  that  the 
slave  should  have  been  held  adversely  for  six  years,  or  should  have 
been  born  of  one  who  had  been  held  adversely  for  six  years  prior  to 
its  birth.  If  a  child  is  born  before  its  mother  has  been  held  adversely 
for  six  years,  it  is  legally  impossible  that  the  true  owner  can  be  barred 
as  to  the  child,  by  the  mere  operation  of  the  statute  of  limitations  of 
six  years,  before  the  child  is  six  years  old.  According  to  the  opinion 
of  my  brethren,  that  statute  may  bar  the  owner,  as  to  the  child,  be- 
fore the  child  is  three  days  old !  They  work  out  this  strange  result, 
by  what  seems  to  me  a  very  plain  misapplication  of  the  doctrine  of 
relation,  and  by  overlooking  the  effect  of  the  undeniable  proposition, 
that  the  detention  of  each  child  born  before  the  mother  has  been  held 
adversely  for  six  years,  is  in  itself  a  cause  of  action,  new,  distinct, 
and  different,  from  that  which  arose  from  the  detention  of  the  mother. 
Ivey  V.  Owens,  28  Ala.  641. 

One  illustration  will  be  sufficient  to  demonstrate  the  unfitness  of  the 
application  of  the  doctrine  of  relation  to  any  case  like  the  present: 
Suppose  A.  has  held  adversely,  for  four  years,  the  female  slave  of  B. 
At  the  end  of  the  four  years,  and  whilst  adversely  held,  she  gives  birth 
to  a  child,  \\hen  the  child  is  one  year  old,  B.,  the  real  owner  of  the 
mother  and  child,  finds  the  child  in  the  highway,  takes  it  peaceably 
into  his  possession,  and  keeps  it  until  after  the  six  years  adverse  pos- 
session of  its  mother  has  run  out,  and  the  title  to  her  has  thereby  be- 
come vested  in  the  adverse  possessor.  The  adverse  possessor,  as  soon 
as  he  has  thus  acquired  title  to  the  mother,  brings  detinue  for  the  child 
against  the  owner  who  had  taken  the  child  in  the  highway  as  afore- 
said !  He  invokes  the  doctrine  of  relation,  and  calls  upon  the  court  to 
apply  the  doctrine,  and  give  him  a  judgment  for  the  child.  Would  any 
court,  upon  such  facts,  think  of  applying  the  doctrine  of  relation,  or 
giving  to  the  adverse  possessor  a  judgment  for  the  child?  If  my  breth- 
ren are  right  in  their  opinion,  the  adverse  possessor  would  recover  the 
child,  upon  the  doctrine  of  relation.     His  title  to  the  mother  being 


160  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

clear,  by  adverse  possession  of  six  years,  and  the  child  having  been 
born  whilst  his  adverse  possession  was  continuing,  although  it  had  con- 
tinued only  four  years  at  the  birth  of  the  child, — the  law,  as  laid  down 
by  my  brethren,  would  give  him  the  child,  by  making  his  title  to  the 
mother  relate  back  to  the  commencement  of  the  adverse  possession. 

Without  saying  anything  as  to  other  parts  of  the  opinion  of  my 
brethren,  I  here  record  my  dissent  from  the  reasoning  and  conclusions 
attained  by  them.^" 


SECTION  3.— ACCESSION 


EATON  V.  LANGLEY. 
(Supreme  Court  of  Arkansas,  1898.    65  Ark.  148,  47  S.  W.  123,  42  L.  R.  A.  474.) 

[Plaintiff  alleged  in  his  complaint  that  he  was  the  owner  of  5,000 
ties  of  the  value  of  $750,  and  that  they  were  wrongfully  in  tlie  posses- 
sion of  the  defendant.  The  plaintiff  asked  for  the  possession  thereof 
or  if  that  could  not  be  obtained,  for  their  value. 

The  court  found  as  facts  tliat  the  timber  from  which  the  ties  were 
made  was  cut  by  the  defendant  from  land  belonging  to  the  plaintiff. 
The  defendant  acted  in  good  faith  but  without  authority.  At  the  be- 
ginning of  tliis  action  the  defendant  had  3,500  such  ties  in  his  pos- 
session: the  ties  were  worth  12%  cents  each;  the  timber  from  which 
they  were  made  was  worth  while  standing,  2  cents  per  tie. 

Upon  these  findings  of  facts  the  court  rendered  a  judgment  as  fol- 
lows: "It  is  therefore  ordered,  considered  and  adjudged  by  the  court 
that  the  plaintiff  have  and  recover  of  and  from  the  defendant  the  sum 
of  seventy  dollars  and  all  costs  of  this  cause,  and  that,  further,  in 
case  the  sums  of  money  above  mentioned,  together  with  the  said  costs, 
are  not  paid  within  ten  days  from  this  date,  the  plaintiff  shall  have 
and  recover  of  the  defendant  the  possession  of  the  3,500  cross-ties." 

Plaintiff  appealed.] 

Battle,  J."  *  *  *  As  a  general  rule,  an  owner  cannot  be  de- 
prived of  his  property  without  his  consent  or  operation  of  law.  "If 
unauthorized  persons  have  bestowed  expense  or  labor  upon  it,  that 
fact  cannot  constitute  a  bar  to  his  reclaiming  it,  so  long  as  identifica- 
tion is  not  impracticable.     But  there  must  be  a  limit  to  this  right." 

10  A.  brought  trover  ag.iinst  B.  for  the  conversion  of  a  female  slave.  Hold, 
A.  recovers  the  value  both  of  the  slave  and  of  olfspriug  born  subsequent  to 
the  conversion.     McVaughters  v.  Elder,  2  Brev.  (S.  C.)  307  (1809). 

1'  Part  of  the  opinion  of  Battle,  J.,  and  the  dissenting  opinion  of  Bunn,  C. 
J.,  are  omitted. 


Sec.  3)  ACCESSION  101 

Mr.  Justice  Blackstone  lays  down  the  rule  very  broadly  that  if  a  thing 
is  changed  into  a  different  species,  as  by  making  wine  out  of  another's 
grapes,  oil  from  his  olives,  or  bread  from  his  wheat,  the  product  be- 
longs to  the  new  operator,  who  is  only  to  make  satisfaction  to  the  for- 
mer proprietor  for  the  materials  converted.  2  Bl.  Comm.  404.  *  *  * 
The  authorities  generally  agree  in  holding  that  when  a  party  has 
taken  the  property  of  another  in  good  faith,  and,  in  reliance  upon  a 
supposed  right,  without  intention  to  commit  wrong,  converted  it  into 
another  form,  and  increased  its  value  by  the  expenditure  of  money 
and  labor,  the  owner  is  precluded  from  following  and  reclaiming  the 
property  in  its  new  form,  if  the  transformation  it  has  undergone  has 
converted  it  into  an  article  substantially  different.  But  they  have  not 
agreed  upon  any  rule  by  which  it  can  in  all  cases  be  ascertained  wheth- 
er this  transformation  has  or  has  not  taken  place.  "If  grain  be  taken 
and  made  into  malt,  or  money  taken  and  made  into  a  cup,  or  timber 
taken  and  made  into  a  house,  it  is  held  in  the  old  English  law  that  the 
property  is  so  altered  as  to  change  the  title.  *  *  *  But  cloth  made 
into  garments,  leather  into  shoes,  trees  hewn  or  sawed  into  timber, 
and  iron  made  into  bars,  it  is  said,  may  be  reclaimed  by  their  owner 
in  their  new  and  original  shape.  *  *  *  Some  of  the  cases  place 
the  right  of  the  former  owner  to  take  the  thing  in  its  altered  condition 
upon  the  question  whether  its  identity  could  be  made  out  by  the 
senses."  Wetherbee  v.  Green,  22  Mich.  318,  319,  7  Am.  Rep.  653. 
But  the  supreme  court  of  Michigan  (Mr.  Justice  Cooley  delivering  the 
opinion  of  the  court)  said  that  the  test  of  the  senses  is  unsatisfactory, 
and  that  "no  test  which  satisfies  the  reason  of  the  law  can  be  applied 
in  the  adjustment  of  questions  of  title  to  chattels  by  accession,  unless 
it  keeps  in  view  the  circumstances  of  relative  values."  It  said :  It 
may  often  happen  that  no  difficulty  will  be  experienced  in  determining 
the  identity  of  a  piece  of  timber  which  has  been  taken  and  built  into  a 
house ;  but  no  one  disputes  that  the  right  of  the  original  owner  is  gone 
in  such  a  case.  A  particular  piece  of  wood  might  perhaps  be  traced 
without  trouble  into  a  church  organ,  or  other  equally  valuable  article ; 
but  no  one  would  defend  a  rule  of  law  which,  because  the  identity 
could  be  determined  by  the  senses,  would  permit  the  owner  of  the 
wood  to  appropriate  a  musical  instrument  a  hundred  or  a  thousand 
times  the  value  of  his  original  materials,  when  the  party  who,  under 
like  circumstance,  has  doubled  the  value  of  another  man's  corn  by 
converting  it  into  malt,  is  permitted  to  retain  it,  and  held  liable  for 
the  original  value  only.  Such  distinctions  in  the  law  would  be  with- 
out reason,  and  could  not  be  tolerated.  When  the  right  to  the  im- 
proved articles  is  the  point  in  issue,  the  question  how  much  the  prop- 
erty or  labor  of  each  has  contributed  to  make  it  what  it  is  must  al- 
ways be  one  of  first  importance.  The  owner  of  a  beam  built  into  the 
house  of  another  loses  his  property  in  it,  because  the  beam  is  insignif- 
icant in  value  or  importance  as  compared  to  that  to  which  it  has  be- 
Big.Peus.Phop. — 11 


1G2  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

come  attached,  and  the  musical  instrument  belongs  to  the  maker  rather 
than  to  the  men  whose  timber  was  used  in  making  it,  not  because  the 
timber  cannot  be  identified,  but  because,  in  bringing  it  to  its  present 
condition,  the  value  of  the  labor  has  swallowed  up  and  rendered  in- 
significant the  value  of  the  original  materials.  The  labor,  in  the  case 
of  the  musical  instrument,  is  just  as  much  the  principal  thing  as  the 
house  is  in  the  other  case  instanced;  the  timber  appropriated  is  in 
each  case  comparatively  unimportant."  Wetherbee  v.  Green,  supra, 
22  Mich.  319,  320,  7  Am.  Rep.  653. 

Wetherbee  v.  Green,  was  an  action  of  replevin  by  the  appellee  against 
the  appellant  to  recover  a  quantity  of  hoops  made  out  of  the  timber  of 
the  former  by  the  latter  in  good  faith,  under  what  he  supposed  to  be 
good  authority.  The  timber  in  the  tree  was  worth  only  ^25,  and  the 
hoops  made  out  of  it  were  worth  $700.  The  court  held  that  the  owner 
could  not  recover  the  hoops,'*  but  was  entitled  to  the  damages  sus- 
tained by  reason  of  the  unintentional  trespass.  This  decision  was 
based  upon  the  reason  that  the  hoops  were  made  in  good  faith,  and 
upon  the  fact  that  the  value  of  the  timber,  as  compared  to  the  value 
of  the  labor  expended  in  making  them,  was  insignificant.     *     *     * 

The  value  of  the  cross-ties  in  controversy  was  twelve  and  a  half 
cents  a  tie.  The  value  of  each  in  the  tree  was  two  cents.  The  value 
of  the  labor  expended  upon  them  is  not  shown,  but  assuming  it  to 
be  the  increased  value  of  ten  and  a  half  cents  a  tie,  the  difference  be- 
tween it  and  the  value  of  the  original  material  is  not  so  great  as  to 
make  the  value  of  the  latter,  as  compared  with  that  of  the  former,  in- 
significant, and  to  make  the  appropriation  of  the  cross-ties  by  the 
original  owner  to  his  own  use,  without  compensation,  appear,  under 
the  circumstances,  gross  injustice  at  the  first  blush.  The  disparity  is 
not  so  great  as  it  was  in  Wetherbee  v.  Green,  supra,  in  which  trees  of 
the  value  of  $25  were  cut  and  taken  by  one  from  the  land  of  another 
and  converted  into  hoops  of  the  value  of  $700,  which  was  twenty- 
eight  times  the  value  of  the  trees,  while  the  cross-ties  in  this  case  wei^e 
about  six  times ;  and  yet  the  supreme  court  of  Michigan,  in  Isle  Roy- 
ale  Mining  Co.  v.  Hertin,  37  Mich.  332,  26  Am.  Rep.  520,  said  that 
"perhaps  no  case  has  gone  further  than  Wetherbee  v.  Green." 

In  considering  the  justice  of  permitting  the  appellant  to  appropri- 
ate the  cross-ties  to  his  own  use,  the  invasion  of  his  rights  and  the  in- 
jury done  to  him  by  appellee  should  not  be  overlooked.  The  trees  be- 
longed to  him.  They  were  standing  upon  his  land,  and  he  had  the 
right  to  hold  them  as  they  were.     No  one  had  the  right  to  take  them 

18  Ace.:  Lewis  v.  Coiirtrigbt,  77  Iowa,  100,  41  N.  W.  615  (1SS9),  ratio,  30 
to  1 ;  Baker  v.  Meisch,  29  Neb.  227,  45  N.  W.  085  (1S90),  ratio  high,  liut  not 
given  exactlv ;  Werner  Stave  Co.  v.  Pickering,  55  Tex.  Civ.  App.  632,  119  S. 
W.  333  (1909),  ratio  3  to  1. 

See  I^ampton's  Ex'rs  v.  Preston's  Ex'rs,  1  J.  J.  Marsh.  (Ky.)  454,  19  Am. 
Dec.  104  (1S29) ;  Carpenter  v.  Lingenfelter,  42  Neb.  728,  60  N.  W.  1022,  32  L. 
R.  A.  422  (1894) ;    State  v.  Goll,  32  N.  J.  Law,  285  (1867). 


Sec.  3)  ACCESSION  163 

from  him,  convert  them  into  ties,  and  force  him  to  accept  their  vakie 
at  the  time  of  the  conversion.  He  may  have  preferred  to  have  them 
to  stand ;  and,  if  left  standing  for  a  few  years,  they  might  yield  him 
great  profit,  and  the  enhancement  of  their  value  by  the  labor  of  ap- 
pellee might  be  a  poor  compensation  for  the  wrong  done.  But  wheth- 
er he  wished  to  sell  or  not,  it  would  be  gross  injustice  to  permit  appel- 
lee to  force  him  to  sell.  He  is  entitled  to  the  protection  of  the  laws. 
Deny  to  him  the  right  to  the  cross-ties,  and  force  him  to  accept  the 
value  of  his  timber  when  appropriated  by  a  trespasser,  as  it  was  at 
the  time  of  tlie  conversion,  and  he  has  no  adequate  protection.  The 
injury  inflicted  by  the  trespasser,  would  be  borne  in  part  by  the  inno- 
cent owner,  and  the  guilty  would  escape.  "Such  a  doctrine,"  as  said 
by  Chief  Justice  Cooley,  "offers  a  premium  to  heedlessness  and  blun- 
ders, and  a  temptation  by  false  evidence  to  give  an  intentional  tres- 
pass the  appearance  of  an  innocent  mistake." 

Assuming  the  trees  to  be  the  property  of  appellant,  and  taking  into 
consideration  the  great  wrong  committed  by  appellee  in  cutting  them, 
the  deprivation  to  the  appellant  of  the  right  to  use  the  same  as  it  might 
please  him,  the  probable  loss  occasioned  thereby,  the  fact  that  the 
identification  of  the  original  material  was  unaffected  by  the  labor  ex- 
pended, the  encouragement  that  would  be  afforded  to  trespassers  by 
allowing  them  to  enjoy  the  fruits  of  their  labor  upon  a  mere  show- 
ing of  mistake,  the  protection  a  contrary  policy  would  afford  to  the 
owner  of  standing  trees  against  heedlessness,  carelessness,  pretend- 
ed mistakes,  and  trespasses,  and  the  importance  of  pursuing  such 
course  to  secure  such  protection, — and  comparing  the  injury  inflicted 
upon  the  appellant  by  the  appellee,  and  the  injustice  of  taking  from 
the  former  his  property  against  his  will,  with  the  hardship  the  latter 
may  suffer  by  the  loss  of  his  labor,  we  think  it  would  be  lawful  and 
right  to  allow  appellant  to  recover  the  cross-ties,  and  to  impose  upon 
the  appellee  the  consequences  of  his  own  carelessness. 

But  appellant  has  not  obtained  possession  of  the  cross-ties.  In  the 
event  he  cannot  do  so,  he  is  entitled  to  the  value  of  the  property  he 
has  lost.  How  is  this  value  to  be  estimated?  This  question  is  not 
beset  with  the  difficulties  which  attend  the  right  of  recaption.  When 
the  appellant  sued  for  the  possession  of  the  cross-ties,  he  was  entitled 
to  their  possession,  unless  he  had  lost  his  property  by  the  wrongful- 
act  of  another.  If  entitled  to  retake  it  in  its  new  form,  it  must  be 
taken  as  he  found  it,  though  enhanced  in  value  by  the  labor  of  appel- 
lee. The  ties  cannot  be  restored  to  their  original  form.  The  appellee 
cannot  force  the  appellant  to  become  a  debtor  to  him'  for  the  value  of 
his  labor,  nor  demand  compensation  for  his  voluntary  additions  to 
the  value  of  the  trees  converted  into  ties,  without  the  assent  of  the  ap- 
pellant. He  cannot  impose  any  conditions  upwn  the  right  to  retake 
them.  The  question,  therefore,  being  whether  the  appellee  shall  lose 
his  labor  or  the  appellant  lose  the  right  to  take  his  property,  the  law 


KU  ACQUISITION   OF   OWNEUSniP  (Cll.  4 

decides  in  favor  of  the  latter.  But,  in  determining  the  compensation 
the  appellant  shall  receive  as  the  value  of  his  property  which  has  been 
wrongfully  converted,  the  difficulty  does  not  arise.  The  value  of  the 
property  of  the  owner,  which  has  been  converted,  can  be  ascertained 
and  fixed  without  including  therein  the  labor  expended  upon  it.  Hence 
the  law  protects  the  unintentional  trespasser  in  such  cases  by  limiting 
the  right  of  the  owner  to  recover.     *     *     * 

According  to  this  opinion,  two  errors  appear  in  the  record  in  this  ac- 
tion. One  is  in  the  form  of  the  judgment.  If  the  appellant  was  the 
owner  of  the  property  in  controversy,  he  was  entitled  to  a  judgment 
for  its  possession,  and  for  its  value,  according  to  the  rule  before  stated, 
"in  case  a  delivery  can  not  be  had."  Sand.  &  H.  Dig.  §  6398.  On  the 
contrary,  the  judgment  rendered  is  for  the  value  of  the  property  de- 
termined by  the  court,  and  then  for  its  possession  in  the  event  the 
value  is  not  paid.     *     *     * 

For  these  errors  the  judgment  of  the  circuit  court  is  reversed,  and 
the  cause  is  remanded  for  a  new  trial. 

BuNN,  C.  J.,  dissented. 


HERDIC  V.  YOUNG. 
(Supreme  Court  of  Penns.vlvania,  1SG7.    55  Pa.  176,  0.3  .\m.  Deo.  T.^O.) 

[Replevin  for  logs  cut  by  the  defendant  in  good  faith  but  wrong- 
fully upon  the  land  of  the  plaintiff,  floated  down  by  the  defendant  to 
the  place  where  they  were  replevied.  The  defendant  retained  posses- 
sion of  the  logs  giving  a  bond  to  produce  the  logs  or  pay  their  value  in 
the  event  that  judgment  was  rendered  for  the  plaintiff.] 

AgnEW,  J.^°  *  *  *  The  primary  purpose  of  replevin  is  to  re- 
cover the  property  in  specie  ;  not  its  value. 

A  change  in  its  form  will  not  prevent  this,  so  long  as  its  identity  can 
be  established.  Snyder  v.  Vaux,  2  Rawle,  425,  21  Am.  Dec.  466,  de- 
cides tliat  the  converting  of  timber  trees,  cut  by  the  defendant,  into 
posts  and  rails,  is  not  such  an  alteration  as  to  prevent  a  recovery  in 
replevin.  *  *  *  It  is  in  the  power  of  the  defendant  in  replevin  to 
relinquish  that  proportion  of  its  value  which  his  labor  or  money  has 
added  to  it  by  suffering  the  sheriff  to  return  it  to  the  owner. 

But  this  result  depends  on  himself.  If  he  claim  the  additional  value, 
it  is  always  his  right  to  retain  the  property  by  giving  a  property  bond ; 
and  the  effect  of  a  verdict  for  damages  in  favor  of  the  plaintiff  is  to 
transfer  the  title  to  the  defendant.  If,  therefore,  he  denies  that  his 
trespass  was  wilful  or  wanton,  and  claims  a  right  to  the  additional  val- 
ue given  to  the  chattel  by  his  labor  and  money  in  converting  and  trans- 
it Part  of  the  opiuion  is  uniitted. 


Sec.  3)  ACCKSSiON  105 

fwrting  it  to  the  place  where  it  is  replevied,  he  has  it  in  his  power  to 
bring  the  damages  of  the  plaintiff  to  their  true  standard.     *     *     * 

The  court  below  erred  therefore  in  rejecting  the  plaintiffs'  evidence 
of  the  value  of  the  logs  in  the  boom ;  the  evidence  being  received,  the 
defendants  would  be  left  to  rebut  it,  if  their  trespass  was  unintentional, 
by  showing  how  much  it  cost  to  cut  and  haul  the  logs  and  drive  them 
to  the  boom. 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded.-" 


TRUSTEES  OF  DARTMOUTH  COLLEGE  v.  INTERNATION- 
AL PAPER  CO. 

(Circuit  Court  of  the  United  States,  D.  New  Hampshire,  1904.     132  Fed.  92.) 

LowELL,^^  District  Judge.  This  is  an  action  of  trover.  The  dec- 
laration alleges  the  conversion  of  spruce,  fir,  and  hemlock  timber,  and 
of  pulp  made  therefrom.  The  defendant  has  suffered  default,  and  the 
court  has  only  to  assess  damages.  To  ascertain  their  amount  the  case 
has  been  submitted  to  a  master.  His  findings  concerning  the  amount 
of  timber  cut  are  not  in  dispute.  By  its  default,  therefore,  the  defend- 
ant has  admitted  conversion,  and  liability  for  the  damage  caused  there- 
by. By  the  undisputed  findings  of  the  master  the  amount  of  timber 
cut  has  been  ascertained,  and  it  remains  only  to  put  tlie  proper  value 
thereon.     *     *     * 

Where  standing  timber  on  the  plaintiff's  land  is  wrongfully  cut,  the 
plaintiff's  choice  of  remedies  is  extensive.  (1)  He  may  bring  an  action 
of  trespass  quare  clausum,  wherein  he  will  recover  the  damage  done 
to  the  real  estate;  that  is  to  say,  the  diminution  in  die  value  of  the 
real  estate  caused  by  the  cutting.  If  he  alleges  by  way  of  aggravation, 
a  trespass  upon  his  personal  property,  viz.,  the  logs,  after  severance 
from  the  realty,  he  may  recover  for  that  also,  thus  joining  his  two 
causes  of  complaint  in  one  action.  (2)  He  may  bring  trespass  de  boms 
asportatis,  wherein  he  will  recover  the  damage  done  by  carrj'ing  oft' 
the  logs  wrongfully  cut.  (3)  He  may  bring  trover,  in  which  case  he 
will  recover  tlie  value  of  the  personal  property — the  logs — at  the  time 
and  place  of  conversion.  As  to  the  three  forms  of  action  just  men- 
tioned, see  Warner  v.  Abbey,  112  Mass.  355.     (4)  He  may  bring  re- 

20  Ace:    State  v.  Shevlin-Carix-ntor  Co.,  62  Minn.  99,  64  N.  W.  81  (lS9.j). 

A.  tortiously,  but  in  good  faith,  cut  timber  on  X.'s  laud  and  transported  it 
to  market.  X.  replevied,  but  failed  to  give  the  bond  required  from  plaintiff 
in  order  to  protect  defendant  af;aiiist  wrongful  seizures.  The  lumber  was 
consequently  returned  to  the  defendant.  Held,  the  plaintiff  can  recover  only 
damages,  deducting  defendants"  labor.  Gustin  v.  Embury-Clark  Lumber  Co., 
145  Mich.  101,  lOS  N.  W.  650  (1006).  See  dissenting  opinion  of  Bunn.  C.  J., 
in  Katon  v.  Langley,  65  Ark.  448,  460,  47  S.  W.  123,  42  L.  R.  A.  474  (189S). 

->  I'art  of  the  opinion  is  omitted. 


166  ACQUISITION   OF   OWNEHSHIP  (Ch.  4 

plevin.  By  this  action  he  will,  in  some  jurisdictions,  recover  the  logs 
themselves,  and  in  others  will  recover  their  value  variously  estimated. 
In  some  jurisdictions  the  action  of  replevin  sounds  altogether  in  dam- 
ages, and  differs  but  little  from  the  action  of  trover.  (5)  He  may  physi- 
cally retake  his  severed  property.  By  this  act  he  will  recover  the  prop- 
erty itself.  Indeed,  though  he  commit  a  breach  of  the  peace  in  the 
recovery,  yet  he  will  still  recover  his  property.  His  civil  or  criminal 
liability  for  his  violence  will  not  divest  his  title.  See  Pabst  Brewing 
Co.  v.  Greenberg,  117  Fed.  135,  55  C.  C.  A.  151.  Other  forms  of  ac- 
tion, such  as  detinue,  or  a  bill  in  equity,  may  be  employed  in  some  ju- 
risdictions and  under  some  circumstances;  and  the  injured  man  may 
sometimes  pursue  more  than  one  remedy  at  once.  It  is  plain  that  in 
some  instances  the  damages  recovered  in  an  action  of  trespass  quare 
clausum  will  be  greater  than  those  recovered  in  trover.  In  other  in- 
stances the  damages  in  trover  will  be  the  larger. 

This  is  an  action  of  trover,  the  gist  of  which  is  the  conversion  by  the 
defendant  of  goods  to  which  the  plaintiff  has  the  right  of  possession. 
"The  plaintiff  is  bound  to  prove  a  right  of  possession  in  himself  at  the 
time  of  the  conversion."  U.  S.  v.  Loughrey,  172  U.  S.  206,  212,  19 
Sup.  Ct.  153,  43  L.  Ed.  420.  Mere  refusal  to  deliver  upon  the  plain- 
tiff's demand  is  sufficient  evidence  of  conversion ;  a  fortiori,  any  posi- 
tive act  of  the  defendant  which  substantially  deprives  the  plaintiff'  of 
that  possession  of  the  goods  to  which  he  is  entitled.  The  declaration  in 
this  case  alleges  a  conversion  of  timber  and  pulp.  If  at  any  time  the 
plaintiff  had  an  unqualified  right  to  possess  that  timber  or  pulp,  and 
the  defendant  refused  to  deliver  the  same  upon  proper  demand,  or 
otherwise  deprived  the  plaintiff  of  his  lawful  possession,  these  facts 
are  sufficient  evidence  of  a  conversion.  See  U.  S.  v.  Loughrey,  172 
U.  S.  206,  216,  19  Sup.  Ct.  153,  43  L.  Ed.  420.  The  plaintiff  will  re- 
cover as  damages  the  value  of  the  property  at  the  time  and  place  of 
the  conversion.  Here  the  standing  timber  was  the  plaintiff's.  Before 
severance  it  was  a  part  of  the  plaintiff's  real  estate.  When  severed  by 
the  plaintiff"  or  defendant  or  a  third  person,  the  logs  were  chattels  of 
which  the  plaintiff"  had  the  right  of  possession.  *  *  *  Northern 
Pacific  R.  R.  V.  Lewis,  162  U.  S.  366,  16  Sup.  Ct.  831,  40  L.  Ed.  1002; 
Phillips  V.  Bowers,  7  Gray  (Mass.)  21.  *  *  *  By  their  removal 
from  the  plaintiff's  land  the  plaintiff's  right  of  possession  was  not  di- 
vested, and  the  plaintiff  here  contends  that  even  the  conversion  of  the 
logs  into  pulp  left  the  plaintiff  with  a  right  of  possession  to  the  product 
manufactured  exclusively  from  its  own  logs.  It  is  true  that  many  dicta 
and  some  decisions  may  be  found  to  the  effect  that  the  one  and  only 
conversion  is  that  which  occurs  when  the  plaintiff's  right  of  possession 
is  first  set  at  naught  by  the  defendant;  but  without  discussing  these 
cases  in  detail,  it  may  be  said  generally  that  they  are  opposed,  not  only 
to  the  weight  of  authority,  but  to  fundamental  principles  of  law. 

But  in  Pine  River  Logging  Co.  v.  U.  S.,  186  U.  S.  279,  at  page  293, 


Sec.  3)  ACCESSION  1 07 

22  Sup.  Ct.  920,  at  page  926,  46  L.  Ed.  1164,  the  Supreme  Court,  in 
substantial  accord  with  most  other  courts,  has  said:  "Where  the  tres- 
pass is  the  result  of  inadvertence  or  mistake,  and  the  wrong  was  not 
intentional,  the  value  of  the  property  when  first  taken  must  govern. 
Or,  if  the  conversion  sued  for  was  after  value  had  been  added  to  it  by 
the  work  of  the  defendant,  he  should  be  credited  with  this  addition. 
Upon  the  other  hand,  if  the  trespass  be  willfully  committed,  the  tres- 
])asser  can  obtain  no  credit  for  the  labor  expended  upon  it,  and  is  liable 
for  its  full  value  when  seized." 

As  here  applicable,  the  rule  thus  laid  down  comes  to  this:  If  the 
defendant's  admitted  conversion  was  the  result  of  inadvertence  or  mis- 
take, it  is  liable  only  for  stumpage,  or  at  most  for  the  value  of  the  logs 
immediately  after  their  cutting.  If  the  conversion  was  willful,  the  de- 
fendant is  liable  for  the  value  of  the  goods,  however  improved.  This 
rule,  or  one  closely  resembling  it,  is  generally  recognized,  though  courts 
are  not  unanimous.  See  Baker  \.  Wheeler,  8  Wend.  (N.  Y.)  505,  24 
Am.  Dec.  66;  Powers  v.  Tilley,  87  Me.  34,  32  Atl.  714,  47  Am.  St.  Rep. 
304;  Wing  v.  Milliken,  91  Me.  387,  40  Atl.  138,  64  Am.  St.  Rep. 
238.    *    *     * 

To  decide  the  case  at  bar  it  is  important  to  know  not  only  the  gen- 
eral rule  thus  declared,  but  its  basis  in  our  system  of  law.  The  dis- 
tinction between  the  two  measures  of  damages  is  spoken  of  in  some 
opinions  as  one  between  damages  compensatory  and  damages  exem- 
plary. The  second  measure  is  sometimes  described  as  if  imposed  by 
way'of  punishment.  State  v.  Shevlin  Co.,  66  Minn.  217,  68  N.  W.  973  ; 
Beede  v.  Lamprey,  64  N.  H.  510,  15  Atl.  133,  10  Am.  St.  Rep.  426. 
But  the  analogy  is  misleading,  as  appears  from  this  consideration 
among  others:  The  second  measure  of  damages  is  imposed  only  where 
the  property  converted  has  been  enhanced  in  value.  The  defendant's 
bad  faith  would  be  the  same  had  the  logs  been  burned,  or  converted 
into  pulp,  and  exemplary  damages  would  be  the  same  in  both  cases; 
but  in  the  former  case  no  more  than  their  value  before  burning  could 
be  recovered  in  this  action.  From  one  point  of  view,  indeed,  the  higher 
measure  of  damages  gives  no  more  than  compensation.  If  the  wrong- 
doer's improvements  belong  to  the  original  owner,  the  latter  gets  no 
more  than  compensation  when  their  value  is  awarded  to  him.  As  be- 
tween the  two  measures  of  damages,  the  choice  depends  upon  the  plain- 
tiff's unqualified  ownership  of  the  property  as  improved  by  the  defend- 
ant's labor.  If  this  unqualified  ownership  exists,  the  higher  measure  of 
damages  gives  no  more  than  compensation  for  a  legal  wrong.  If  the 
defendant,  by  his  labor,  has  gained  a  right  of  property  in  the  goods  he 
has  converted,  the  damages  should  be  computed  by  a  lower  measure. 

By  what  principle  does  the  law  give  to  a  defendant  a  right  to  the 
value  of  the  improvements  he  has  made  in  another's  property,  which 
he  has  converted?  Though  he  trespass  innocently,  yet  he  must  make 
good  the  plaintiff's  loss,  but  he  may  be  entitled  under  some  circum- 


168  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

Stances,  to  an  allowance  from  the  owner  by  reason  of  the  improvement 
made.  Sedgw^ick  on  Damages,  903,  915.  This  principle  of  justice,  as 
it  is  deemed  to  be,  has  obvious  application  where  recovery  is  sought 
for  the  wrongful  cutting  of  timber.  If  the  plaintiff  is  deemed  to  have 
the  right  immediately  to  possess  the  logs  through  one  or  more  trans- 
formations which  enhance  their  value,  the  ordinary  rule  of  damages  in 
an  action  of  trover  will  permit  the  plaintiff  to  state  the  defendant's 
conversion  as  of  any  time  the  plaintiff  is  pleased  to  select,  and  so  the 
real  damage  done  to  the  plaintiff  may  be  enhanced  many  fold  by  includ- 
ing therein  the  value  added  to  his  property  by  the  defendant's  opera- 
tions. In  some  cases  this  is  deemed  unjust,  not  by  reason  of  the  form 
of  the  plaintiff's  action,  but  by  a  rule  of  substantive  law.  In  some  cases 
the  improvement  gives  to  the  trespasser  a  qualified  right  of  property 
in  the  goods  improved.  Here  is  to  be  found  the  basis  of  the  two  meas- 
ures of  damage  above  stated,  and  not  in  the  theory  of  punishment.  Not- 
withstanding much  confusion  of  language  in  many  decisions,  the  prin- 
ciple above  stated  is  recognized  in  those  cases  which  are  best  rea- 
soned and  most  authoritative.  See  Silsbury  v.  McCoon,  3  N.  Y.  379, 
53  Am.  Dec.  307 ;  Powers  v.  United  States,  1 19  Fed.  562,  56  C.  C.  A. 
128 ;  Anderson  v.  Besser,  131  Mich.  481,  91  N.  W.  717.  To  obtain  this 
right  the  improvement  must  be  made  in  good  faith. -=  *  *  *  As 
the  allowance  sought  by  the  defendant  involves  an  exception  establish- 
ed upon  the  ordinary  measure  of  damages  recoverable  in  an  action  of 
trespass,  the  burden  of  proving  the  facts  upon  which  the  allowance  is 
based  rests  upon  the  defendant  (United  States  v.  Homestake  Co.,  117 
Fed.  481,  54  C.  C.  A.  303;  United  States  v.  Baxter  [C.  C]  46  Fed. 
350;  United  States  v.  Ordway  [C.  C]  30  Fed.  31  *  *  *):  though 
it  seems  that  no  specific  allegation  or  claim  for  allowance  need  be  made 
in  the  pleadings.  That  the  burden  of  proving  good  faith  rests  upon 
the  defendant  shows  that  we  are  not  here  dealing  with  exemplary  or 
punitive  damages,  properly  so  called.  The  burden  of  showing  a  right 
to  these  rests  always  upon  the  plaintiff. 

Unfortunately,  the  precise  measure  of  the  allowance  to  the  defend- 
ant for  his  improvements  has  been  stated  by  different  courts — or  by  the 
same  court — in  many  ways.  In  theory  the  allowance  should  equal  the 
cost  of  the  defendant's  improvement,  not  to  exceed  the  consequent  en- 
hancement of  value  in  the  property  converted.  But  sometimes  the 
plaintiff  has  been  limited  to  the  recovery  of  (a)  stumpage,  or,  in  the 
case  of  coal,  of  reasonable  royalty  (Hilton  v.  Woods,  L.  R.  4  Eq.  432 ; 

*  *  *  United  States  v.  Homestake  Co.,  117  Fed.  481,  54  C.  C.  A. 
303:     *     *     *     King  v.   Merriman,   38  Minn.   47,   35   N.   W.    570; 

*  *  * ) ;  sometimes  (b)  the  value  after  severance,  less  expense  of 
severing  (see  Durant  Mining  Co.  v.  Percy  Mining  Co.,  93  Fed.  166,  167, 

2  2  The  part  omitted  is  given  in  tlie  footnote  to  Isle  Eojale  Mining  Co.  r. 
Ilertin,  post,  p.  173. 


Sec.  3)  ACCESSION  Iti'J 

35  C.  C.  A.  252 ;  ♦  *  *  ) ;  sometimes  (c)  stumpage  plus  profit  (Win- 
chester V.  Craig,  33  Mich.  205 ;  *  *  * ) ;  sometimes  (d)  value  at 
severance,  less  what  it  would  have  cost  the  plaintiff  to  sever  (see  Mor- 
gan V.  Powell,  3  Q.  B.  278) ;  sometimes  (e)  value  at  time  of  action 
brought,  or  at  some  other  time  after  severance,  less  expense  of  im- 
provement (see  Jegon  v.  Vivian,  L.  R.  6  Ch.  742;  *  *  *  Powers 
v.  United  States,  119  Fed.  562,  56  C.  C.  A.  128;  *  *  *);  some- 
times (f)  value  immediately  after  severance,  on  the  theory  that  there 
can  be  no  conversion  of  chattels  until  after  severance  from  the  realt\ 
(see  United  States  v.  Van  Winkle,  51  C.  C.  A.  533,  113  Fed.  903: 
White  V.  Yawkey,  108  Ala.  270,  19  South.  360,  32  L.  R.  A.  199,  54 
Am.  St.  Rep.  159;  *  *  *  Morgan  v.  Powell,  3  Q.  B.  278;  Martin  v. 
Porter,  5  M.  &  W.  351 ;  *  *  *);  sometimes  (g)  value  when  removed 
from  plaintiff's  land  because  the  conversion  is  not  deemed  complete 
until  then  (Wright  v.  Skinner,  34  Fla.  453,  16  South.  335) ;  sometimes 
(h)  defendant's  profit  received  (Colorado  Mining  Co.  v.  Turck,  70  Fed. 
294,  17  C.  C.  A.  128);  sometimes  (i)  value  at  time  of  action  brought,  or 
at  some  other  time  after  severance,  less  value  added  by  defendant 
(Coal  Co.  V.  Coal  Co.,  24  Colo.  116,  48  Pac.  1045;  Peters  Co.  v.  Lesh, 
119  Ind.  98,  20  N.  E.  291,  12  Am.  St.  Rep.  367).  Some  of  these  rules 
seem  to  have  been  adopted  as  rough  and  ready  measures  of  conven- 
ience, some  without  recognition  of  the  difference  between  them.  Each 
and  all  are  deemed  to  furnish  an  allowance  for  the  value  of  improve- 
ments made  in  good  faith  upon  the  property  of  another,  and  all  show 
that  diminished  damages  are  permitted  by  way  of  allowance  to  a  de- 
fendant, rather  than  are  enhanced  damages  inflicted  for  his  punish- 
ment. 

From  what  has  been  said  it  follows  that,  in  order  to  reduce  their  lia- 
bility, this  defendant  must  show  that  its  action  in  converting  the  plain- 
tiff's propertT,'  was  in  good  faith.  There  has  been  considerable  discus- 
sion as  to  the  meaning  of  the  term  "good  faith"  in  this  connection. 
The  good  faith  which  will  protect  the  defendant  is  not  incompatible 
with  some  degree  of  negligence.  Almost  any  trespass  upon  the  rights 
of  another  which  is  not  wilful  arises,  in  whole  or  in  part,  from  the  de- 
fendant's ignorance  of  something  which  he  might  have  discovered  had 
he  exercised  a  certain  degree  of  care.  "Trespasses  on  the  land  of  an- 
other, not  wilful,  alwavs  imply  some  degree  of  negligence."  Franklin 
Coal  Co.  v.  McMillan,  49  Md.  549,  559,  33  Am.  Rep.  280.  In  most  of 
the  cases  in  which  the  defendant  has  been  given  an  allowance  for  the 
enhancement  of  value  which  he  had  caused  in  the  object  converted  he 
had  shown  some  degree  of  negligence.  In  not  a  few  he  had  lacked  the 
care  of  ordinary'  men  under  the  circumstances.  Yet  this  was  not  held 
to  prevent  some  allowance  and  a  reduction  of  damages.  See  Gates  v. 
Comstock,  113  Mich.  127,  71  N.  W.  515.  All  the  language  of  the 
courts  cannot  be  reconciled  (see  Donovan  v.  Consol.  Coal  Co.,  187  111. 
28,  58  X.  E.  290,  79  Am.  St.  Rep.  206),  but,  upon  the  whole,  it  seems 


170  ACQUISITION   OF   OWNERSHIP  (Ch.  i 

that  the  defendant  is  bound  only  to  negative  willful  injury  to  the  known 
property  of  another,  and  willful  disregard  of  another's  rights  (King  v. 
Merriman,  38  Minn.  47,  35  N.  W.  570).  Some  opinions  require  that 
the  defendant's  mistake  should  be  reasonable,  but  to  require  this  would 
call  upon  the  defendant  to  negative  negligence.  See  Mississippi  River 
Logging  Co.  V.  Page,  68  Minn.  269,  71  N.  W.  4.  If  the  injury  is  caused 
by  negligence,  as  distinguished  from  willfulness,  wantonness,  or  reck- 
lessness it  seems  that  the  defendant  is  still  entitled  to  his  allowance. 
In  any  case  the  plaintiff  will  recover  complete  compensation  for  his 
actual  damage  in  the  ordinary  sense  of  the  words.     *     *     * 

[The  court  found  in  this  case  that  tlie  defendant  acted  in  good  faith.] 
While  the  language  used  by  the  Supreme  Court,  upon  the  whole,  ap- 
proves as  measure  of  damages  the  value  of  the  logs  immediately  after 
their  separation  from  the  freehold,  it  is  plain  that  the  difference  be- 
tween this  value  and  stumpage  has  never  been  expressly  considered  by 
that  court.  On  technical  grounds  it  is  possible  to  argue  with  some 
force  that  the  plaintiff  should  be  given  the  value  immediately  after  sev- 
erance, but  the  stumpage  value  better  accords  with  the  principles  upon 
which  the  allowance  for  improvements  is  made.  Neither  measure  is 
strictly  accurate,  as  has  been  pointed  out  already,  but,  if  the  defend- 
ant is  to  be  allowed  for  any  improvements,  then  to  deprive  him  of  the 
value  of  tlie  improvement  first  in  time  and  most  necessary,  viz.,  that 
arising  from  severance  from  the  realty,  is  to  make  the  technical  differ- 
ence between  real  property  in  tiie  shape  of  a  standing  tree  and  personal 
property  in  the  shape  of  a  felled  tree  the  cause  of  a  great  dift'erence  in 
substantial  rights.  The  weight  of  authority  outside  the  Supreme 
Court,  on  the  whole,  supports  the  allowance  of  stumpage  only,  and 
with  some  doubt  I  have  decided  to  allow  only  tliat  in  this  case. 
Judgment  for  $49,102.94  and  interest." 

23  See  Livingstone  v.  Rawyards  Coal  Co.,  L.  R.  5  A.  C.  25  (ISSO) ;  Maye  v. 
Yappen,  23  Cal.  306  (1863) ;  Everson  v.  Seller,  105  Ind.  266,  4  N.  E.  854  (188.S) ; 
Winchester  v.  Craig,  33  Mich.  205  (1876) ;  Beede  v.  Lamprey,  6-4  N.  H.  510, 
15  Atl.  133,  10  Am.  St.  Rep.  426  (1S8S) ;  Trustees  of  Proprietors  of  Kingston 
V.  Lehigh  Valley  Coal  Co.,  241  Pa.  481,  88  Atl.  768  (1913). 

"If  *  *  *  the  defendant  *  *  *  mined  coal  from  the  plaintiffs'  land 
without  his  consent  *  *  *  and  did  so  by  mistake  or  inadvertence,  *  *  * 
the  plaintiff  *  *  *  is  to  be  allowed  the  value  of  the  coal  at  the  pit 
mouth  less  the  cost  of  carrying  it  there  from  the  place  where  it  was  dug,  al- 
lowing the  defendant  nothing  for  the  digging."  This  instruction  held  cor- 
rect. The  court  said:  "No  necessity  exists  for  one  miner  to  trespass  upon  an 
adjoining  owner.  If  proper  maps  and  plans  of  the  mine  are  kept,  and  meas- 
urements and  surveys  of  the  work  made,  as  required  by  common  prudence 
and  the  statute,  each  miner  will  have  no  difiiculty  in  confining  his  operations 
to  his  own  estate.  When,  therefore,  one  miner,  in  disregard  of  his  duty,  in- 
vades the  property  of  another,  he  should  not  be  permitted  to  profit  by  his  un- 
lawful act,  which  would  be  the  case  if  the  trespasser  was  only  required  to 
pay  the  value  of  the  coal  as  it  existed  in  the  mine  before  it  was  taken." 
Illinois  &  St.  Louis  K.  &  Coal  Co.  v.  Ogle,  82  111.  627,  628,  630,  25  Am.  Rep. 
342  (1876). 


Sec.  3)  ACCESSION  171 

ISLE  ROYALE  MINING  CO.  v.  HERTIN  et  al. 

(Supreme  Court  of  Michigan,  1877.    37  Mich.  332,  26  Am.  Rep.  520.) 

Trover  and  assumpsit.    Defendant  brings  error. 

CooLEY,  C.  J.^*  The  parties  to  this  suit  were  owners  of  adjoining 
tracts  of  timbered  lands.  In  the  winter  of  1873-74  defendants  in 
error,  who  were  plaintiffs  in  the  court  below,  in  consequence  of  a 
mistake  respecting  the  actual  location,  went  upon  the  lands  of  the 
mining  company  and  cut  a  quantity  of  cord  wood,  which  they  hauled 
and  piled  on  the  bank  of  Portage  Lake.  The  next  spring  the  wood 
was  taken  possession  of  by  the  mining  company,  and  disposed  of  for 
its  own  purposes.  The  wood  on  the  bank  of  the  lake  was  worth 
$2.87V2  per  cord,  and  the  value  of  the  labor  expended  by  the  plaintiffs 
in  cutting  and  placing  it  there  was  $1.8714  per  cord.  It  was  not  clear- 
ly shown  that  the  mining  company  had  knowledge  of  the  cutting  and 
hauling  by  the  plaintiffs  while  it  was  in  progress.  After  the  mining 
company  had  taken  possession  of  the  wood,  plaintiffs  brought  this 
suit.     *     *     * 

The  circuit  judge  instructed  the  jury  as  follows :  "If  you  find  that 
the  plaintiffs  cut  the  wood  from  defendant's  land  by  mistake  and  without 
any  willful  negligence  or  wrong,  I  then  charge  you  that  the  plaintiff's 
are  entitled  to  recover  from  the  defendant  the  reasonable  cost  of  cut- 
ting, hauling  and  piling  the  same." 

This  presents  the  only  question  it  is  necessary  to  consider  on  this 
record.    The  jury  returned  a  verdict  for  the  plaintiffs. 

Some  facts  appear  by  the  record  which  might  perhaps  have  war- 
ranted the  circuit  judge  in  submitting  to  the  jury  the  question  whether 
the  proper  authorities  of  the  mining  company  were  not  aware  that 
the  wood  was  being  cut  by  the  plaintiff's  under  an  honest  mistake 
as  to  their  rights,  and  were  not  placed  by  that  knowledge  under  ob- 
ligation to  notify  the  plaintiffs  of  their  error.  But  as  the  case  was  put 
to  the  jury,  the  question  presented  by  the  record  is  a  narrow  question 
of  law,  which  may  be  stated  as  follows :  Whether,  where  one  in  an 
honest  mistake  regarding  his  rights  in  good  faith  performs  labor  on 
the  property  of  another,  the  benefit  of  which  is  appropriated  by  the 
owner,  the  person  performing  such  labor  is  not  entitled  to  be  compen- 
sated therefor  to  the  extent  of  the  benefit  received  by  the  owner  there- 
from?    *     *     * 

We  understand  it  to  be  admitted  by  the  plaintiffs  that  no  authority 
can  be  found  in  support  of  the  proposition  thus  stated.  It  is  con- 
ceded that  at  the  common  law  when  one  thus  goes  upon  the  land  of 
another  on  an  assumption  of  ownership,  though  in  perfect  good  faith 
and  under  honest  mistake  as  to  his  rights,  he  may  be  held  responsible 

2*  Part  of  the  opiuion  is  omitted. 


172  ACQUISITION   OF   OWNERSHIP  (CI).  4 

as  a  trespasser.  His  good  faith  does  not  excuse  him  from  the  pay- 
ment of  damages,  the  law  re(]uiring  him  at  his  peril  to  ascertain  what 
his  rights  are,  and  not  to  invade  the  possession,  actual  or  constructive, 
of  another.     *     *     * 

It  is  said,  however,  that  an  exception  to  this  rule  is  admitted  under 
certain  circumstances,  and  that  a  trespasser  is  even  permitted  to  make 
title  in  himself  to  the  property  of  another,  where  in  good  faith  he  has 
expended  his  own  labor  upon  it,  under  circumstances  which  would 
render  it  grossly  unjust  to  permit  the  other  party  to  appropriate  the 
benefit  of  such  labor.     *     *     * 

Where  the  appropriation  of  the  property  of  another  was  accidental 
or  through  mistake  of  fact,  and  labor  has  in  good  faith  been  ex- 
pended upon  it  which  destroys  its  identity,  or  converts  it  into  some- 
thing substantially  different,  and  the  value  of  the  original  article  is 
insignificant  as  compared  with  the  value  of  the  new  product,  the  title 
of  the  property  in  its  converted  form  must  be  held  to  pass  to  the 
person  by  whose  labor  in  good  faith  the  change  has  been  wrought, 
the  original  owner  being  permitted,  as  his  remedy,  to  recover  the  value 
of  the  article  as  it  was  before  the  conversion.  This  is  a  thoroughly 
equitable  doctrine,  and  its  aim  is  so  to  adjust  the  rights  of  the  par- 
ties as  to  save  both,  if  possible,  or  as  nearly  as  possible,  from  any  loss. 
But  where  the  identity  of  the  original  article  is  susceptible  of  being 
traced,  the  idea  of  a  change  in  the  property  is  never  admitted,  unless 
the  value  of  that  which  has  been  expended  upon  it  is  sufficiently  great, 
as  compared  with  the  original  value,  to  render  the  injustice  of  permit- 
ting its  appropriation  by  the  original  owner  so  gross  and  palpable  as 
to  be  apparent  at  the  first  blush.  Perhaps  no  case  has  gone  further 
than  Wetherbee  v.  Green,  22  Mich.  311,  7  Am.  Rep.  653,  in  which  it 
was  held  that  one  who,  by  unintentional  trespass,  had  taken  from  the 
land  of  another  young  trees  of  the  value  of  $25,  and  converted  them  in- 
to hoops  worth  $700,  had  thereby  made  them  his  own,  though  the 
identity  of  trees  and  hoops  was  perfectly  capable  of  being  traced  and 
established. 

But  there  is  no  such  disparity  in  value  between  the  standing  trees 
and  the  cord  wood  in  this  case  as  was  found  to  exist  between  the  trees 
and  the  hoops  in  Wetherbee  v.  Green.  The  trees  are  not  only  suscepti- 
ble of  being  traced  and  identified  in  the  wood,  but  the  difference  in 
value  between  the  two  is  not  so  great  but  that  it  is  conceivable  the 
owner  may  have  preferred  the  trees  standing  to  the  wood  cut.  The 
cord  wood  has  a  higher  market  value,  but  the  owner  may  have  chosen 
not  to  cut  it,  expecting  to  make  some  other  use  of  the  trees  than  for 
fuel,  or  anticipating  a  considerable  rise  in  value  if  they  were  allowed 
to  grow.  It  cannot  be  assumed  as  a  rule  that  a  man  prefers  his  trees 
cut  into  cord  wood  rather  than  left  standing,  and  if  his  right  to  leave 
them  uncut  is  interfered  with  even  by  mistake,  it  is  manifestly  just 
that  the  consequences  should   fall  upon  the  person  committing  the 


Sec.  3)  ACCESSION  173 

mistake,  and  not  upon  him.  Xothing  could  more  encourage  careless- 
ness than  the  acceptance  of  the  principle  that  one  who  by  mistake  per- 
forms labor  upon  the  property  of  another  should  lose  nothing  by  his 
error,  but  should  have  a  claim  upon  the  owner  for  remuneration.  Why 
should  one  be  vigilant  and  careful  of  the  rights  of  others  if  such  were 
the  law?  Whether  mistaken  or  not  is  all  the  same  to  him,  for  in 
either  case  he  has  employment  and  receives  his  remuneration ;  while 
the  inconveniences,  if  any,  are  left  to  rest  with  the  innocent  owner. 
Such  a  doctrine  offers  a  premium  to  heedlessness  and  blunders,  and  a 
temptation  by  false  evidence  to  give  an  intentional  trespass  the  af)- 
pearance  of  an  innocent  mistake. 

A  case  could  seldom  arise  in  which  the  claim  to  compensation  could 
be  more  favorably  presented  by  the  facts  than  it  is  in  this ;  since 
it  is  highly  probable  that  the  defendant  would  suffer  neither  hardship 
nor  inconvenience  if  compelled  to  pay  the  plaintiffs  for  their  labor. 
But  a  general  principle  is  to  be  tested,  not  by  its  operation  in  an  in- 
dividual case,  but  by  its  general  workings.  If  a  mechanic  employed  to 
alter  over  one  man's  dwelling  house,  shall  by  mistake  go  to  another 
which  happens  to  be  unoccupied,  and  before  his  mistake  is  discovered, 
at  a  large  expenditure  of  labor  shall  thoroughly  overhaul  and  change 
it,  will  it  be  said  that  the  owner,  who  did  not  desire  his  house  disturbed, 
must  either  abandon  it  altogether,  or  if  he  takes  possession,  must  pay 
for  labor  expended  upon  it  which  he  neither  contracted  for,  desired, 
nor  consented  to?  And  if  so,  what  bounds  can  be  prescribed  to  which 
the  application  of  this  doctrine  can  be  limited?  The  man  who  by 
mistake  carries  off  the  property'  of  another  will  next  be  demanding 
payment  for  the  transportation ;  and  the  only  person  reasonably  se- 
cure against  demands  he  has  never  assented  to  create,  will  be  the  per- 
son who,  possessing  nothing,  is  thereby  protected  against  anything  be- 
ing accidentally  improved  by  another  at  his  cost  and  to  his  ruin. 

The  judgment  of  the  circuit  court  must  be  reversed,  with  costs,  and 
a  new  trial  ordered.-^ 

2  5  Ace:  Gaskins  v.  Davis,  115  N.  C.  So,  20  S.  E.  ISS.  25  L.  R.  A.  813. 
44  Am.  St.  Rep.  4.39  (1894).  Compare  Arpin  v.  Burch,  68  Wis.  619.  32  N.  W. 
681  (1887). 

•This  substantial  rlsht  of  the  defendant  [to  have  the  plaintiff's  daniajies 
rediK-ed  by  the  amount  to  which  the  property  has  been  Improved  by  the  de- 
fendant's bona  fide  worli]  must  be  available  to  him  whatever  be  the  form  of 
remedy  selected  by  the  plaintiff.  An  action  of  trespass  quare  clausum  hardly 
calls  for  an  exercise  of  the  rule.  An  action  of  trespass  de  bonis  ordinarily 
calls  for  a  more  limited  exercise  of  the  rule  than  does  the  action  of  trespass 
sur  trover.  If  the  rule  is  to  have  its  full  effect,  it  must  be  applicable  also 
where  the  plaintiff  recovers  the  property  without  recourse  to  law.  This  is 
especially  desirable,  indeed,  for  if  the  plaintiff  can  hold  his  improved  and 
transmuted  property  which  he  has  physically  retaken  without  allowance  to 
the  defendant,  while  in  an  action  he  -can  recover  but  a  small  part  of  the 
value  of  this  improved  property,  the  plaintiff  will  be  disposed  to  resort  to 
physical  recovery  without  the  aid  of  the  law,  even  if  force  and  a  breach  of 
the  peace  be  the  result.  That  a  plaintiff  may  recover  more  in  one  form  of 
action  than  in  another  ordinarily  involves  no  serious  hardship.    The  plaintilT 


17i  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

SILSBURY  V.  McCOON. 
(Court  of  Appeals  of  New  York,  1850.    3  N.  Y.  379,  53  Am.  Dec.  307.)t 

[Trover  for  a  quantity  of  whiskey. 

The  facts  proved  by  the  plaintiffs  to  establish  their  title  were  as  fol- 
lows: On  the  18th  of  February,  1842,  a  sheriff  levied  upon  five  hun- 
dred bushels  of  grain  by  virtue  of  a  fi.  fa.  against  one  Wood  in  favor 
of  one  Tymason.  The  grain  was  in  Wood's  distillery  at  the  time  and 
the  sheriff  did  not  remove  it.  After  the  levy,  the  plaintiffs  who  suc- 
ceeded Wood  in  the  possession  of  the  distillery  converted  the  grain  into 
whiskey.  The  plaintiffs  informed  the  sheriff  of  the  conversion  of  tlie 
grain  into  whiskey  and  gave  him  their  note  for  the  value  of  the  grain 
which  was  accepted  by  Tymason  as  so  much  paid  on  the  fi.  fa.  On  the 
22d  day  of  March,  1842,  after  the  grain  had  been  manufactured  into 
whiskey,  a  deputy  sheriff  levied  on  the  whiskey  by  virtue  of  a  fi.  fa. 
against  the  said  Wood  in  favor  of  the  defendants.  The  whiskey  was 
sold  against  the  objections  of  the  plaintiffs  and  purchased  by  the  de- 
fendants who  converted  it  to  their  own  use. 

The  plaintiffs  having  rested  the  defendants  offered  to  prove  that 
the  whiskey  was  made  from  grain  belonging  to  the  said  Wood,  that 
this  conversion  was  made  by  the  plaintiffs  without  any  authority  from 
Wood  and  that  they  knew  of  the  time  that  the  grain  belonged  to  Wood. 
This  evidence  was  objected  to  on  the  ground  that  Wood's  title  was  ex- 
tinguished by  the  conversion.  The  objection  was  sustained,  and  the 
defendant's  counsel  excepted.  There  was  a  verdict  for  the  plaintiff. 
A  motion  was  made  for  a  new  trial  on  bill  of  exceptions  to  the  Su- 
preme Court.  The  motion  was  denied  and  the  defendants  brought  writ 
of  error  to  the  Court  of  Appeals.] 

RuGGLES,  J.''"  It  is  an  elementary  principle  in  the  law  of  all  civil- 
ized communities,  that  no  man  can  be  deprived  of  his  property,  except 
by  his  own  voluntary  act,  or  by  operation  of  law.  The  thief  who  steals 
a  chattel,  or  the  trespasser  who  takes  it  by  force,  acquires  no  title 

ordinarily  has  his  choice  among  different  forms  of  action.  But  that  a  man 
may  lawfully  retain  property  which  he  has  retaken  by  unlawful  violence, 
many  times  the  value  of  that  which  he  could  have  recovered  by  the  form  of 
action  most  favorable  to  him,  cannot  be  allowed  by  any  system  which  calls 
itself  law."  Trustees  of  Dartmouth  College  v.  International  Paper  Co.  (C.  C.) 
132  Fed.  92,  97  (1904). 

A.  in  good  faith  tortiously  cut  timber  on  X.'s  land,  increasing  the  value 
one  and  one-fourth  times.  A.  delivered  the  timber  to  B.  as  his  bailee ;  B. 
delivered  it  to  X.  on  X.'s  demand.  Held,  A.  cannot  maintain  trover  against 
B.  for  the  timber  so  delivered.  Gates  v.  Kifle  Boom  Co.,  70  Mich.  309,  38 
N.  W.  245  (ISSS). 

See  Woodward,  The  Law  of  Quasi  Contracts,  c.  13. 

t  The  case  was  twice  before  the  Supreme  Court ;  the  opinions  of  that  court 
being  reported  in  6  Hill,  425,  41  Am.  Dec.  753  (1844),  and  in  4  Denio,  332  (1847). 

2  8  Part  of  the  opinion  is  omitted. 


Sec.  3)  ACCESSION  17a 

by  such  wrongful  taking.  The  subsequent  possession  by  the  thief  or 
the  trespasser  is  a  continuing  trespass ;  and  if  during  its  continuance, 
the  wrongdoer  enhances  the  value  of  the  chattel  by  labor  and  skill 
bestowed  upon  it,  as  by  sawing  logs  into  boards,  splitting  timber  into 
rails,  making  leather  into  shoes,  or  iron  into  bars,  or  into  a  tool,  the 
manufactured  article  still  belongs  to  the  owner  of  the  original  ma- 
terial, and  he  may  retake  it  or  recover  its  improved  value  in  an  action 
for  damages.  And  if  the  wrongdoer  sell  the  chattel  to  an  honest  pur- 
chaser having  no  notice  of  the  fraud  by  which  it  was  acquired,  the 
purchaser  obtains  no  title  from  the  trespasser,  because  the  trespasser 
had  none  to  give.  The  owner  of  the  original  material  may  still  retake 
it  in  its  improved  state,  or  he  may  recover  its  improved  value.  The 
right  to  the  improved  value  in  damages  is  a  consequence  of  the  con- 
tinued ownership.  It  would  be  absurd  to  say  that  the  original  owner 
may  retake  the  thing  by  an  action  of  replevin  in  its  improved  state, 
and  yet  that  he  may  not,  if  put  to  his  action  of  trespass  or  trover,  re- 
cover its  improved  value  in  damages.  Thus  far,  it  is  conceded  that  the 
common  law  agrees  with  the  civil. 

They  agree  in  another  respect,  to  wit,  that  if  the  chattel  wrongfully 
taken,  afterwards  come  into  the  hands  of  an  innocent  holder  who  be- 
lieving himself  to  be  the  owner,  converts  the  chattel  into  a  thing  of 
different  species  so  that  its  identity  is  destroyed,  the  original  owner 
cannot  reclaim  it.  Such  a  change  is  said  to  be  wrought  when  wheat 
is  made  into  bread,  olives  into  oil,  grapes  into  wine.  In  a  case  of  this 
kind  the  change  in  the  species  of  the  chattel  is  not  an  intentional  wrong 
to  the  original  owner.  It  is  therefore  regarded  as  a  destruction  or  con- 
•sumption  of  the  original  materials,  and  the  true  owner  is  not  permitted 
to  trace  their  identity  into  the  manufactured  article,  for  the  purpose 
of  appropriating  to  his  own  use  the  labor  and  skill  of  the  innocent 
occupant  who  wrought  the  change;  but  he  is  put  to  his  action  for 
damages  as  for  a  thing  consumed,  and  may  recover  its  value  as  it  was 
when  the  conversion  or  consumption  took  place. 

There  is  great  confusion  in  the  books  upon  the  question  what  con- 
stitutes change  of  identity.  In  one  case  (5  Hen.  7,  fol.  15),  it  is  said 
that  the  owner  may  reclaim  the  goods  so  long  as  they  may  be  known, 
or  in  other  words,  ascertained  by  inspection.  But  this  in  many  cases 
is  by  no  means  the  best  evidence  of  identity ;  and  the  examples  put 
by  way  of  illustration  serve  rather  to  disprove  than  to  establish  the  • 
rule.  The  court  say  that  if  grain  be  made  into  malt,  it  can  not  be  re- 
claimed by  the  owner,  because  it  can  not  be  known.  But  if  cloth  be 
made  into  a  coat,  a  tree  into  squared  timber,  or  iron  into  a  tool,  it 
may.  Xow  as  to  the  cases  of  the  coat  and  tlie  timber  they  may  or 
may  not  be  capable  of  identification  by  the  senses  merely ;  and  the 
rule  is  entirely  uncertain  in  its  application ;  and  as  to  the  iron  tool, 
it  certainly  cannot  be  identified  as  made  of  the  original  material,  with- 
out other  evidence.     This  illustration  therefore,  contradicts  the  rule. 


176  ACQUISITION   OF   OWNERSHIP  (Cll.  4 

In  anotlier  case  (Moore's  Rep.  20),  trees  were  made  into  timber  and 
it  was  adjudged  that  the  owner  of  the  trees  might  reclaim  the  timber, 
"because  the  greater  part  of  the  substance  remained."  But  if  this 
were  the  true  criterion  it  would  embrace  the  cases  of  wheat  made  into 
bread,  milk  into  cheese,  grain  into  malt,  and  others  which  are  put  in 
the  books  as  examples  of  a  change  of  identity.  Other  writers  say 
that  when  the  thing  is  so  changed  that  it  can  not  be  reduced  from  its 
new  form,  to  its  fonner  state,  its  identity  is  gone.  But  this  would 
include  many  cases  in  which  it  has  been  said  by  the  courts  that  the 
identity  is  not  gone;  as  the  case  of  leather  made  into  a  garment,  logs 
into  timber  or  boards,  cloth  into  a  coat,  etc.  There  is  therefore  no 
definite  settled  rule  on  this  question ;  and  although  the  want  of  such 
a  rule  may  create  embarrassment  in  a  case  in  which  the  owner  seeks 
to  reclaim  his  property  from  the  hands  of  an  honest  possessor ;  it  pre- 
sents no  difficulty  where  he  seeks  to  obtain  it  from  the  wrongdoer; 
provided  the  common  law  agrees  with  the  civil  in  the  principle  applica- 
ble to  such  a  case. 

The  acknowledged  principle  of  the  civil  law  is  that  a  wilful  wrong- 
doer acquires  no  property  in  the  goods  of  another,  either  by  the 
wrongful  taking  or  by  any  change  wrought  in  them  by  his  labor  or 
skill,  however  great  that  change  may  be.  The  new  product,  in  its 
improved  state,  belongs  to  the  owner  of  the  original  materials,  pro- 
vided it  be  proved  to  have  been  made  from  them;  the  trespasser  loses 
his  labor,  and  that  change  which  is  regarded  as  a  destruction  of  the 
goods,  or  an  alteration  of  their  identity  in  favor  of  an  honest  posses- 
sor, is  not  so  regarded  as  between  the  original  owner  and  a  willful  vio- 
lator of  his  right  of  property. 

These  principles  are  to  be  found  in  the  Digest  of  Justinian  (lib.  10, 
tit.  4,  leg.  12,  §  3).  "If  any  one  shall  make  wine  with  my  grapes,  oil 
with  my  olives,  or  garments  with  my  wool,  knowing  they  are  not  his 
own,  he  shall  be  compelled  by  action  to  produce  the  said  wine,  oil 
or  garments."  So  in  Vinnius'  Institutes,  tit.  1,  pi.  25.  "He  who 
knows  the  material  is  another's  ought  to  be  considered  in  the  same 
light  as  if  he  had  made  the  species  in  the  name  of  the  owner,  to  whom 
also  he  is  to  be  understood  to  have  given  his  labor." 

The  same  principle  is  stated  by  Pufifendorf  in  his  Law  of  Nature 
and  of  Nations,  (h.  4,  c.  7,  §  10),  and  in  Wood's  Institutes  of  the  Civil 
Law,  p.  92,  which  are  cited  at  large  in  the  opinion  of  Jewett,  J.,  de- 
livered in  this  case  in  the  supreme  court  (4  Denio,  338),  and  which  it 
is  unnecessary  here  to  repeat.  In  Brown's  Civil  and  Admiralty  Law, 
p.  240,  the  writer  states  the  civil  law  to  be  that  the  original  owner  of 
any  thing  improved  by  the  act  of  another,  retained  his  ownership  in 
the  thing  so  improved,  unless  it  was  changed  into  a  different  species ; 
as  if  his  grapes  were  made  into  wine,  the  wine  belonged  to  the  maker, 
who  was  only  obliged  to  pay  the  owner  for  the  value  of  his  grapes. 
The  species  however  must  be  incapable  of  being  restored  to  its  ancient 


Sec.  3)  ACCESSION  177 

form ;  and  the  materials  must  have  been  taken  in  ignorance  of  their 
being  the  property  of  another. 

But  it  was  thought  in  the  court  below  that  this  doctrine  had  never 
been  adopted  into  the  common  law,  either  in  England  or  here ;  and  the 
distinction  between  a  willful  and  an  involuntary  wrongdoer  herein  be- 
fore mentioned,  was  rejected  not  only  on  that  ground  but  also  be- 
cause the  rule  was  supposed  to  be  too  harsh  and  rigorous  against  the 
w-rongdoer. 

It  is  true  that  no  case  has  been  found  in  the  English  books  in  which 
that  distinction  has  been  expressly  recognized;  but  it  is  equally  true 
that  in  no  case  until  the  present  has  it  been  repudiated  or  denied.  The 
common  law  on  this  subject  was  evidently  borrowed  from  the  Roman 
at  an  early  day;  and  at  a  period  when  the  common  law  furnished 
no  rule  whatever  in  a  case  of  this  kind.  Bracton  in  his  treatise  com- 
piled in  the  reign  of  Henry  III,  adopted  a  portion  of  Justinian's  In- 
stitutes on  this  subject  without  noticing  the  distinction ;  and  Black- 
stone,  in  his  commentaries,  vol.  2,  p.  404,  in  stating  what  the  Roman 
law  was,  follows  Bracton,  but  neither  of  these  writers  intimate  that  on 
the  point  in  question  there  is  any  difference  between  the  civil  and  the 
common  law.  The  authorities  referred  to  by  Blackstone  in  support  of 
his  text  are  three  only.  The  first  in  Brooks'  Abridgment,  tit.  Property, 
23,  is  the  case  from  the  Year  Book  5  H.  7,  fol.  15  (translated  in  a 
note  to  4  Denio,  335),  in  which  the  owner  of  leather  brought  trespass 
for  taking  slippers  and  boots,  and  the  defendant  pleaded  that  he  was 
the  owner  of  the  leather  and  bailed  it  to  J.  S.  who  gave  it  to  the  plain- 
tiff, who  manufactured  it  into  slippers  and  boots,  and  the  defendant 
took  them  as  he  lawfully  might.  The  plea  was  held  good  and  the  title 
of  the  "owner  of  the  leather  unchanged.  The  second  reference  is  to 
a  case  in  Sir  Francis  Moore's  Reports,  p.  20,  in  which  the  action  was 
trespass  for  taking  timber,  and  the  defendant  justified  on  the  ground 
that  A.  entered  on  his  land  and  cut  down  trees  and  made  timber  there- 
of, and  carried  it  to  the  place  where  the  trespass  was  alleged  to  have 
been  committed,  and  afterwards  gave  it  to  the  plaintiff,  and  that  the 
defendant  therefore  took  the  timber  as  he  lawfully  might.  In  these 
cases  the  chattels  had  passed  from  the  hands  of  the  original  trespasser 
into  the  hands  of  a  third  person ;  in  both  it  was  held  that  the  title 
of  the  original  owner  was  linchanged,  and  that  he  had  a  right  to  the 
property  in  its  improved  state  against  the  third  person  in  possession. 
They  are  in  conformity  with  the  rule  of  the  civil  law;  and  certainly 
fail  to  prove  any  difference  between  the  civil  and  the  common  law 
on  the  point  in  question.  The  third  case  cited  is  from  Popham's  Re- 
ports, p.  38,  and  was  a  case  of  confusion  of  goods.     *     *     * 

So  long  as  property  wrongfully  taken  retains  its  original  form  and 
substance,  or  may  be  reduced  to  its  original  materials,  it  belongs,  ac- 
cording to  the  admitted  principles  of  the  common  law,  to  the  orig- 
inal owner,  without  reference  to  the  degree  of  improvement,  or  the 
Big.Pers.Proj?. — 12 


178  ACQUISITION   OF  OWNERSHIP  (Cll.  4 

additional  value  given  to  it  by  the  labor  of  the  wrongdoer.  Nay  more,- 
this  rule  holds  good  against  an  innocent  purchaser  from  the  wrong- 
doer, although  its  value  be  increased  an  hundred  fold  by  the  labor  of 
the  purchaser.  This  is  a  necessary  consequence  of  the  continuance 
of  the  original  ownership. 

There  is  no  satisfactory  reason  why  the  wrongful  conversion  of  the 
original  materials  into  an  article  of  a  difterent  name  or  a  different 
species  should  work  a  transfer  of  the  title  from  the  true  owner  to  the 
trespasser,  provided  the  real  identity  of  the  thing  can  be  traced  by  evi- 
dence. The  difficulty  of  proving  the  identity  is  not  a  good  reason.  It  re- 
lates merely  to  the  convenience  of  the  remedy,  and  not  at  all  to  tlie  right. 
There  is  no  more  difficulty  or  uncertainty  in  proving  that  the  whiskey 
in  question  was  made  of  Wood's  corn,  than  there  would  have  been 
in  proving  that  the  plaintiff  had  made  a  cup  of  his  gold,  or  a  tool  of 
his  iron ;  and  yet  in  those  instances,  according  to  the  English  cases, 
the  proof  would  have  been  unobjectionable.  In  all  cases  where  the 
new  product  can  not  be  identified  by  mere  inspection,  the  original 
material  must  be  traced  by  the  testimony  of  witnesses  from  hand  to 
hand  through  the  process  of  transformation. 

Again.  The  court  below  seem  to  have  rejected  the  rule  of  the  civil 
law  applicable  to  this  case,  and  to  have  adopted  a  principle  not  hereto- 
fore known  to  the  common  law ;  and  for  the  reason  that  the  rule  of 
the  civil  law  was  too  rigorous  upon  the  wrongdoer,  in  depriving  him 
of  the  benefit  of  his  labor  bestowed  upon  the  goods  wrongfully  taken. 
But  we  think  the  civil  law  in  this  respect  is  in  conformity  not  only  with 
plain  principles  of  morality,  but  supported  by  cogent  reasons  of  public 
policy ;  while  the  rule  adopted  by  the  court  below  leads  to  the  absurdity 
of  treating  the  wilful  trespasser  with  greater  kindness  and  mercy 
than  it  shows  to  the  innocent  possessor  of  another  man's  goods.  A 
single  example  may  suffice  to  prove  this  to  be  so.  A  trespasser  takes  a 
quantity  of  iron  ore  belonging  to  another  and  converts  it  into  iron, 
thus  changing  the  species  and  identity  of  the  article;  the  owner  of  the 
ore  may  recover  its  value,  in  trover  or  trespass;  but  not  the  value 
of  the  iron,  because  under  the  rule  of  the  court  below  it  would  be 
unjust  and  rigorous  to  deprive  the  trespasser  of  the  value  of  his 
labor  in  the  transmutation.  But  if  the  same  trespasser  steals  the  iron 
and  sells  it  to  an  innocent  purchaser,  who  works  it  into  cutlery,  the 
owner  of  the  iron  may  recover  of  the  purchaser  the  value  of  the  cutlery, 
because  by  this  process  the  original  material  is  not  destroyed,  but  re- 
mains, and  may  be  reduced  to  its  former  state ;  and  according  to  the 
rule  adopted  by  the  Court  below  as  to  the  change  of  identity  the  orig- 
inal ownership  remains.  Thus  the  innocent  purchaser  is  deprived  of 
the  value  of  his  labor,  while  the  guilty  trespasser  is  not. 

The  rule  adopted  by  the  court  below  seems,  therefore,  to  be  ob- 
jectionable, because  it  operates  unequally  and  unjustly.  It  not  only 
divests  the  true  owner  of  his  title,  without  his  consent;    but  it  ob- 


Sec.  3)  ACCESSION  179 

literates  the  distinction  maintained  by  the  civil  law,  and  as  we  think  by 
the  common  law,  between  the  guilty  and  the  innocent,  and  abolishes  a 
salutary  check  against  violence  and  fraud  upon  the  rights  of  property. 

We  think,  moreover,  that  the  law  on  this  subject  has  been  settled  by 
judicial  decisions  in  this  country.  In  Betts  v.  Lee,  5  John.  349,  4  Am. 
Dec.  368,  it  was  decided  that  as  against  a  trespasser  the  original  owner 
of  the  property  may  seize  it  in  its  new  shape,  whatever  alteration  of 
form  it  may  have  undergone,  if  he  can  prove  the  identity  of  the  orig- 
inal materials.  That  was  a  case  in  which  the  defendant  had  cut 
down  the  plaintiff's  trees,  and  made  them  into  shingles.  The  property 
could  neither  be  identified  by  inspection,  nor  restored  to  its  original 
form;  but  the  plaintiff  recovered  the  value  of  the  shingles.  So  in 
Curtis  v.  Groat,  6  John.  169,  5  Am.  Dec.  204,  a  trespasser  cut  wood 
on  another's  land  and  converted  it  into  charcoal.  It  was  held  that 
the  charcoal  still  belonged  to  the  owner  of  the  wood.  Here  was  a 
change  of  the  wood  into  an  article  of  different  kind  and  species.  No 
part  of  the  substance  of  the  wood  remained  in  its  original  state;  its 
identity  could  not  be  ascertained  by  the  senses,  nor  could  it  be  re- 
stored to  what  it  originally  was.  That  case  distinctly  recognizes  the 
principle  that  a  wilful  trespasser  can  not  acquire  a  title  to  property 
merely  by  changing  it  from  one  species  to  another.  And  the  late  Chan- 
cellor Kent,  in  his  Commentaries  (vol.  2,  p.  363),  declares  that  the 
English  law  will  not  allow  one  man  to  gain  a  title  to  the  property  of 
another  upon  the  principle  of  accession,  if  he  took  the  other's  property 
wilfully  as  a  trespasser:  and  that  it  was  settled  as  early  as  the  time 
of  the  year  books,  that  whatever  alteration  of  form  any  property  had 
undergone,  the  owner  might  seize  it  in  its  new  shape,  if  he  could  prove 
the  identity  of  the  original  materials. 

The  same  rule  has  been  adopted  in  Pennsylvania.  Snyder  v.  Vaux, 
2  Rawle,  427,  21  Am.  Dec.  466.  And  in  Maine  and  Massachusetts  it 
has  been  applied  to  a  wilful  intermixture  of  goods.  Ryder  v.  Hatha- 
way, 21  Pick.  (Mass.)  304,  305  ;  Wingate  v.  Smith,  20  Me.  287;  Willard 
V.  Rice,  1 1  Mete.  (Mass.)  493,  45  Am.  Dec.  226. 

We  are  therefore  of  opinion  that  if  the  plaintiff's  below  in  convert- 
ing the  corn  into  whiskey  knew  that  it  belonged  to  Wood,  and  that 
they  were  thus  using  it  in  violation  of  his  right,  they  acquired  no  title 
to  the  manufactured  article,  which  although  changed  from  the  original 
material  into  another  of  different  nature,  yet  being  the  actual  product 
of  the  corn,  still  belonged  to  Wood.  The  evidence  offered  by  the  de- 
fendants and  rejected  by  the  circuit  judge  ought  to  have  been  admitted. 

The  right  of  Wood's  creditors  to  seize  the  whiskey  by  tlieir  execu- 
tion is  a  necessary  consequence  of  Wood's  ownership.  Their  right 
is  paramount  to  his,  and  of  course  to  his  election  to  sue  in  trover  or 
trespass  for  the  corn. 

The  judgment  of  the  supreme  court  should  be  reversed  and  a  new 
trial  ordered. 


ISO  ACQUISITION   OP   OWNERSHIP  (Ch.  i 

Gardiner,  Jewett,  Hurlbut,  and  Pratt,  JJ.,  concur. 

Bronson,  C.  J.  (dissenting).  Two  very  able  arguments  here,  against 
the  opinion  which  I  dehvered  when  the  case  was  before  the  supreme 
court  (4  Denio,  332),  have  only  served  to  confirm  me  in  the  conclusion 
at  which  I  then  arrived.  I  shall  add  but  little  now  to  what  I  said  on 
the  former  occasion. 

The  owner  may,  as  a  general  rule,  follow  and  retake  the  property 
of  which  he  lias  been  wrongfully  deprived  so  long  as  the  same  thing 
remains,  though  it  may  have  been  changed  in  form  and  value  by  the 
labor  and  skill  of  the  wrongdoer.  Eut  when,  as  in  this  case,  the  iden- 
tity of  the  thing  has  been  destroyed  by  a  chemical  process,  so  that  the 
senses  can  no  longer  take  cognizance  of  it — when  it  has  not  only 
changed  its  form  and  appearance,  but  has  so  combined  with  other  ele- 
ments that  it  has  ceased  to  be  the  same  thing,  and  become  something 
else,  the  owner  can,  I  think,  follow  it  no  longer:  his  remedy  is  an  ac- 
tion for  damages.  Such  I  take  to  be  the  rule  of  the  common  law; 
and  that  is  our  law. 

The  rule  for  which  the  defendants  contend,  that  in  the  case  of  a 
wilful  trespass,  the  owner  may  follow  and  retake  his  property  after  it 
has  been  changed  into  a  tiling  of  a  different  species — that  he  may  trace 
corn  into  whiskey,  and  take  the  new  product — is  open  to  several  objec- 
tions. First :  it  would  be  nearly  or  quite  impossible  to  administer  such 
a  rule  in  trials  by  jury.  Second:  the  rule  would  often  work  injus- 
tice, by  going  beyond  the  proper  measure  of  either  redress  or  punish- 
ment; while  an  action  for  damages  would  render  exact  justice  to  both 
parties.  It  is  very  true  that  a  wilful  trespasser  should  be  punished : 
but  that  proves  nothing.  All  agree  that  he  should  be  made  to  sufifer; 
but  the  mode  and  measure  of  punishment  are  cpiestions  which  still  re- 
main. If  one  has  knowingly  taken  six  pence  worth  of  his  neighbor's 
goods  as  a  trespasser,  he  should  neither  be  imprisoned  for  life,  nor 
should  he  forfeit  a  thousand  dollars.  We  should  not  lose  sight  of  the 
fact,  that  the  rule  now  to  be  established  is  one  for  future,  as  well  as 
present  use;  and  it  may  work  much  greater  injustice  in  other  cases 
than  it  can  in  this.  Third :  there  is  no  authority  at  the  common  law 
for  following  and  retaking  the  new  product  in  a  case  like  this.  I 
make  the  remark  with  the  more  confidence,  because  the  very  diligent 
counsel  for  the  defendants,  after  having  had  several  years,  pending 
this  controversy,  for  research,  has  only  been  able  to  produce  some 
dicta  of  a  single  jurist,  without  so  much  as  one  common  law  adjudica- 
tion in  support  of  the  rule  for  which  he  contends.  He  is  driven  to  the 
civil  law ;  and  tlien  the  argument  is,  that  because  we,  in  common  with 
the  civilians,  allow  the  owner  to  retake  his  property  in  certain  cases, 
we  must  be  deemed  to  have  adopted  the  rule  of  the  civil  law  on  this 
subject  in  its  whole  extent.  But  that  is  a  non  sequitur.  It  often  hap- 
pens that  our  laws  and  those  of  the  Romans — and,  indeed,  of  all  civ- 
ilized nations — are  found  to  agree  in  some  particulars,  while  they  are 


Sec.  3)  ACCESSION  181 

widely  different  in  others ;  and  this  is  true  of  laws  relating  to  a  single 
subject.  There  is  no  force,  therefore,  in  the  argfument,  that  because 
our  law  touching  this  matter  is  to  some  extent  like  the  civil  law,  it  may 
be  presumed  that  the  two  systems  are  alike  in  every  particular.  And 
clearly,  the  burden  of  showing  that  the  Roman  law  is  our  law,  lies  on 
those  who  affirm  that  fact.  There  is  not  only  the  absence  of  any  com- 
mon law  adjudication  in  favor  of  the  rule  for  which  the  defendants 
contend,  but  in  one  of  the  earliest  cases  on  the  subject  to  be  found 
in  our  books  (Year  Book,  5  H.  7,  fo.  15,  4  Denio,  335,  note),  the  court 
plainly  recognized  the  distinction  which  has  been  mentioned,  and  ad- 
mitted that  the  owner  could  not  retake  the  property  after  its  identity 
had  been  destroyed ;  and  "grain  taken  and  malt  made  of  it"  was  given 
as  an  example. 

There  are  many  cases  where  the  title  to  a  personal  chattel  may  be 
turned  into  a  mere  right  of  action,  without  the  consent  of  the  owner, 
although  the  thing  was  taken  by  a  wilful  trespasser,  or  even  bv  a  thief. 
If  a  man  steal  a  piece  of  timber,  and  place  it  as  a  beam  or  rafter  in 
his  house ;  or  a  nail,  and  drive  it  into  his  ship ;  or  paint,  and  put  it 
upon  his  carriage,  the  owner  can  not  retake  his  goods,  but  is  put  to  his 
action  for  damages ;  and  this  is  so  in  the  civil,  as  well  as  at  the  com- 
mon law.  If  a  thief  take  water  from  another's  cistern,  and  use  it  in 
making  beer ;  or  salt,  and  use  it  in  pickling  pork ;  or  fuel,  and  use  it 
in  smoking  hams,  I  suppose  no  one  will  say,  that  the  owner  of  the 
water,  the  salt  or  the  fuel  may  seize  the  beer,  the  pork  or  the  hams. 
And  there  is  no  better  reason  for  giving  him  the  new  product,  where 
sand  is  made  into  glass,  malt  into  beer,  coal  into  gas,  or  grain  into 
whiskey.  In  the  case  now  before  us,  the  civilians  would  not  go  so  far 
a9  to  say,  that  the  owner  of  the  grain  might  take  the  swine  which 
were  fattened  on  the  refuse  of  the  grain  after  it  had  gone  through  the 
process  of  distillation.  And  yet  that  would  liardly  be  more  unjust  or 
absurd  than  it  would  be  to  give  him  the  whiskey.  There  must  be  a 
limit  somewhere ;  and  I  know  of  none  which  is  more  safe,  practical 
and  just  than  that  which  allows  the  owner  to  follow  a  chattel  until  it 
has  either  been  changed  into  a  different  species,  or  been  adjoined  to 
something  else,  which  is  the  principal  thing;  and  stops  there.  Thus 
far  our  courts  have  gone,  and  there  they  have  stopped.  We  have  nei- 
ther precedent  nor  reason  in  favor  of  taking  another  step ;  and  I 
can  not  take  it. 

Judge  Harris  agrees  with  me  in  the  ojiinion  that  the  judgment  of 
the  supreme  court  is  right,  and  should"  be  affirmed. 

Taylor,  J.,  did  not  hear  the  argument,  and  gave  no  opinion. 

Judgment  reversed.^' 

27  Ace:  Davis  v.  Easley,  13  111.  192  (1S51),  semble;  Burris  v.  Johnson,  1  J. 
J.  Marsh.  (Ky.)  190  (1829). 

A.  caused  a  chain  to  be  made  from  several  broken  links,  some  of  which  be- 
longed to  him  and  some  to  X.  This  was  done  without  X.'s  consent.  X.  took 
the  chain.     A.  brings  trespass.     An  instruction  that,  if  A.  had  incorporated 


182  ACQUISITION  OP  OWNERSHIP  (Ch.  4 

ELLIS  V.  WIRE. 

(Supreme  Court  of  Indiana,  1870.     33  Ind.  127,  5  Am.  Rep.  189.) 

Appeal  from  the  Huntington  Common  Pleas. 

Frazer,  J.  This  was  a  suit,  begun  before  a  justice  of  the  peace, 
by  the  appellant,  for  the  taking  and  cor.version  of  wheat  and  straw 
of  the  appellant  by  the  appellee. 

There  seems  to  have  been  no  controversy  in  the  evidence,  concern- 
ing the  plaintiff's  title  to  the  property.  The  defendant,  however,  forci- 
bly took  possession  of  it  as  it  stood  in  the  field,  driving  the  plaintiff 
away,  harvested  and  sold  the  grain  for  one  dollar  and  seventy-five 
cents  per  bushel,  and  on  the  trial  was  permitted,  over  the  plaintiff's 
objection,  to  prove  the  value  of  his  own  labor  in  harvesting  and  thresh- 
ing the  crop,  for  the  purpose  of  reducing  the  damages.  The  question 
before  us  is  as  to  the  admissibility  of  this  evidence.  It  was  not  ad- 
missible. The  general  rule  in  trover  is,  tliat  the  measure  of  the  plain- 
tiff's damages  is  the  value  of  the  property  at  the  time  of  conversion, 
without  any  deduction  for  labor  voluntarily  bestowed  upon  it  by  the 
wrong  doer.  Ewart  v.  Kerr,  2  McMull.  (S.  C.)  141 ;  Jenkins  v.  Mc- 
Conico,  26  Ala.  213.  The  time  of  conversion  is  not,  it  seems,  always 
fixed  by  the  same  circumstances.  Thus,  a  tortious  taking  is  sufficient 
proof  of  a  conversion,  but  yet  it  appears  from  many  of  the  cases  that 
the  plaintiff  may  elect  to  consider  the  property  as  still  his  own  and 
treat  a  sale  of  it  by  the  wrong  doer,  or  a  refusal  to  deliver  on  demand, 
as  the  conversion.  Or  it  has  been  held,  that  the  law  will,  upon  the 
principle  of  natural  justice,  that  a  wrong  doer  ought  not  to  be  allowed 
to  make  a  profit  by  his  own  wilful  tort,  treat  the  conversion  of  prop- 
erty of  fluctuating  value  as  occurring  at  such  time  between  the  taking 
and  the  trial  as  the  property  bears  the  highest  price  in  the  market. 
The  confusion  in  the  cases  seems  in  part  to  have  arisen  out  of  the  form 
of  the  action,  some  courts  and  judges  holding  that  by  bringing  trover 
the  plaintiff  precludes  himself  from  showing  that  the  taking  was  wil- 
ful, and  hence  that  the  inquiry  concerning  damages  must  in  all  such 
cases,  in  that  form  of  action,  be  confined  to  the  value  of  the  prop- 
erty at  the  time  of  conversion,  without  reference  to  the  manner  of 
the  taking.  In  trespass,  however,  no  such  technical  reason  stood  in 
the  way,  and,  so  far  as  we  know,  there  is  no  conflict  in  the  cases, 
where  that  was  the  form  of  action. 

only  two  or  three  links  of  X.'s  chain  in  this  chain.  It  would  not  thereby  be- 
come X.'s  property,  held  correct.  Pulcifer  v.  Page,  32  Me.  404,  54  Am.  Dec. 
582  (1851). 

A.  cut  grass  on  X.'s  land,  knowing  that  he  had  no  authority  to  do  so,  and 
made  it  into  hay.  The  hay  was  negligently  burned  by  B.  Held,  A.  cannot 
recover  from  B.  Murphy  v.  S.  C.  &  P.  R.  Co.,  55  Iowa,  473,  8  N.  W.  320,  39 
A  m.  Rep.  175  (1881). 

See  Betts  v.  Lee,  5  Johns.  (N.  Y.)  348,  4  Am.  Dec.  308  (1810). 


Sec.  3)  ACCESSION  183 

Some  loose  ideas  in  reference  to  the  time  of  conversion  have  also 
tended  to  darken  counsel  as  to  the  measure  of  damages  m  trover  where 
the  general  rule  that  the  value  of  the  property  at  the  time  of  conversion 
has  been  held  to  be  a  universal  rule.  A  wrongful  taking  and  a  de- 
mand and  refusal  are  each  held  in  trover  to  be,  not  a  conversion,  but 
merely  sufficient  evidence  of  it.  And  yet  nothing  can  be  clearer  than 
that  these  things  do  not  change  the  title  to  the  property;  it  still  re- 
mains in  the  plaintiff,  and  may,  by  action  of  replevin,  be  recovered  in 
specie,  so  long  as  its  identity  is  perceptible  to  the  senses.  It  may  be  so 
recovered,  though  its  form  has  been  changed  and  its  value  greatly  in- 
creased by  the  labor  of  the  defendant,  as  in  the  case  of  logs  converted 
into  plank,  wool  into  cloth,  cloth  into  clothing,  leather  into  boots  and 
shoes,  and  the  like.  It  may  in  the  new  form  be  replevied,  because  it 
is,  in  that  form,  still  the  property  of  the  plaintiff,  and  the  defendant 
is  not  entitled  to  compensation  for  the  labor  bestowed  upon  it,  for 
that  was  his  own  folly,  and,  indeed,  he  was  a  wrong  doer  in  the  very 
act  of  adding  such  value  to  the  property  of  another.  The  sale  of  the 
wheat  was  its  actual  conversion  by  the  defendant,  and  its  value  at  that 
time,  in  the  form  in  which  he  sold  it,  was  the  measure  of  damages,  if 
the  plaintiff  was  content  therewith ;  though  we  think  he  was  entitled 
to  the  highest  price  of  the  property  at  any  time  between  the  taking  and 
the  sale.  So  are  the  English  cases.  Greening  v.  Wilkinson,  1  C.  &  P. 
625.  And  such  seems  to  have  been  the  doctrine  of  the  common  law 
since  the  Year  Books.  See  Brown  v.  Sax,  7  Cow.  (N.  Y.)  95  ;  Betts 
V.  Lee,  5  Johns.  (N.  Y.)  348,  4  Am.  Dec.  368;  Baker  v.  Wheeler,  8 
Wend.  (N.  Y.)  505,  24  Am.  Dec.  66;  Silsbury  v.  McCoon,  3  N.  Y. 
379,  53  Am:  Dec.  307. 

It  is  held  otherwise  in  Massachusetts,  but  the  ruling  is  maintained 
there  to  preserve  consistency  of  decision,  and  not  because  it  was  the 
doctrine  of  the  common  law.  We  do  not  like  the  Massachusetts  rule, 
and  if  the  question  were  res  integra  we  would  not  adopt  it,  for  the  rea- 
son that  it  is  too  tender  of  the  interests  of  the  wilful  tort  feasor. 

Reversed,  with  costs;  cause  remanded  for  a  new  trial. ^* 


SINGLE  V.  SCHNEIDER. 

(Supreme  Court  of  Wisconsin,  1S72.     30  Wis.  570.) 

[Replevin  for  lumber.  The  defendant  gave  the  bond  required  by 
statute  and  retained  possession  of  the  lumber.  The  facts  appear  in  the 
opinion,  and  in  the  former  report  of  the  same  case.  24  Wis.  299.  The 
jury  found  for  the  plaintiff',  and  found  that  58,000  feet  of  the  logs 
were  cut  by  the  defendants  in  good  faith,  by  mistake,  and  59,350  were 

2  3  Acc:  Barton  Coal  Co.  v.  Cox,  39  Md.  1,  17  Am.  Rep.  525  (1S73) ;  Cheeney 
V.  NebrasUa  &  C.  Stone  Co.  (C.  C.)  41  Fed.  740  (l&OO). 


184  ACQUISITION  OF  OWNEUSniP  (Ch.  4 

cut  wilfully,  and  not  by  mistake.    A  motion  for  a  new  trial  being  over- 
ruled, defendants  appealed  from  the  judgment.] 

Cole,  J.'°  This  case  has  been  before  this  court  at  a  previous  term, 
and  will  be  found  reported  in  24  Wis.  299.  The  facts  as  developed  on 
the  second  trial,  were  substantially  the  same  as  are  the  first.  Among 
other  things,  the  court  charged,  in  respect  to  the  rule  of  damages  as 
follows :  "When  a  person  cuts  logs  upon  the  land  of  another,  without 
a  lawful  right  so  to  do,  but  in  good  faith,  believing  that  he  has  the 
right  to,  he  is  entitled  to  have  deducted  from  the  value  of  the  property 
replevied,  such  cost  and  expense  and  labor  as  he  has  bestowed  upon 
the  property  to  get  it  into  its  enhanced  value.  But  on  the  other  hand, 
if  knowingly  and  wilfully,  without  color  or  claim  of  right,  he  cuts  logs 
upon  the  land  of  another,  the  owner  is  entitled  to  recover  the  enhanced 
value  of  the  property  in  whatever  shape  he  may  put  it,  provided  he  re- 
claims the  specific  property." 

The  sole  question  in  the  case  arises  upon  the  last  paragraph  of  this 
charge,  which  was  excepted  to  on  the  trial.  The  jury  found  under  this 
charge  that  58  M  feet  of  the  logs  were  cut  by  the  defendants  in  good 
faith  by  mistake,  and  that  a  little  over  59  M  feet  were  cut  wilfully  and 
not  by  mistake;  and  the  plaintiff  had  judgment  for  the  improved  value 
of  the  property  on  that  quantity. 

The  counsel  for  the  defendant  contends  that,  so  far  as  the  measure  of 
damages  is  concerned,  it  is  quite  immaterial  whether  the  logs  were  cut 
intentionally  or  through  mistake — that  the  damages  given  in  law  as 
compensation  for  an  injury  should  be  precisely  commensurate  with  the 
injury  neither  more  or  less;  and  that  the  plaintiff  is  not  entitled  to  re- 
cover the  value  of  the  property  in  its  improved  state,  under  the  circum- 
stances of  this  case.  He  concedes  that,  if  there  was  anything  tending 
to  show  that  the  trespass  was  wanton  or  malicious — committed  under 
circumstances  of  insult  or  aggravation — then,  upon  the  authorities,  ex- 
emplary damages  might  be  allowed  in  the  discretion  of  the  jury,  which 
might  exceed  or  fall  below  the  value  of  the  property  enhanced  by  the 
labor  of  the  defendants.  But  he  claims  that  when  a  person,  though 
intentionally,  cuts  pine  logs  upon  the  wild,  unoccupied  land  of  another, 
to  say,  as  a  matter  of  right,  the  owner  shall  recover  the  enhanced  val- 
ue of  the  property  manufactured  into  lumber,  or  into  the  most  ex- 
pensive furniture,  is  a  rule  contrary  to  the  principles  of  natural  jus- 
tice, and  not  in  accordance  with  the  doctrine  of  the  common  law. 

We  are  inclined  to  adopt  this  view  of  the  matter,  although  we  are 
well  aware  that  by  so  doing  we  lay  down  a  rule  in  conflict  with  some 
adjudications,  which  may  be  found.  But  it  seems  to  us  that,  if  the 
owner  is  entirely  indemnified  for  the  injury  he  has  sustained,  it  is  quite 
immaterial  whether  the  logs  were  cut  by  mistake  or  intentionally,  un- 
less in  the  latter  case  the  trespass  was  of  such  a  character  as  to  make 

2  8  I'art  of  the  opiuion  is  omitted. 


Sec.  3)  ACCESSION  185 

the  doctrine  of  exemplary  damages  applicable.  This  was  the  view  ex- 
pressed by  Mr.  Justice  Paine  in  Weymouth  v.  Chicago  &  Northwestern 
R.  R.  Co.,  17  Wis.  550,  555,  84  Am.  Dec.  763,  and  it  seems  to  us  that  it 
is  consonant  with  sound  principle  and  natural  justice.  It  is  true,  that 
was  an  action  of  trover,  and  this  is  an  action  of  replevin.  But  here  the 
defendants  gave  the  undertaking  under  the  statute,  and  retained  pos- 
session of  the  property.  The  judgment  was  in  the  alternative,  for  the 
delivery"  of  the  property  to  the  plaintiff  in  case  deliver}'  could  be  had, 
or  for  its  value.  The  plaintiff  does  not  really  expect  to  recover  the  spe- 
cific property,  and  therefore  there  is  no  valid  reason  for  a  distinction 
between  this  case  and  that  of  trover,  as  regards  the  rule  of  damages ; 
it  should  be  the  same  in  both  cases.  And  consequently,  whether  the 
logs  were  cut  by  mistake  or  intentionally  is  immaterial  as  affecting  the 
amount  of  the  recover}-,  unless  the  element  of  exemplary  damages  en- 
ters into  the  case,  which  is  not  contended  for  by  the  counsel  for  the 
plaintiff.  But  he  insists  that  it  is  the  settled  rule  of  the  common  law 
in  the  case  of  a  voluntary  trespass,  that  the  owner  may  retake  the 
property  in  its  improved  state,  or  recover  its  enhanced  value,  so  long 
as  its  identity  remains. 

This  was  the  great  question  discussed  in  the  celebrated  case  of  Sils- 
bury  V.  McCoon,  reported  in  6  Hill,  425,  41  Am.  Dec.  753,  4  Denio, 
332,  and  3  N.  Y.  379,  53  Am.  Dec.  307.  *  *  *  The  majority  of 
the  Court  of  Appeals  held  to  the  doctrine  that  one  man  could  not  gain 
any  title  to  the  property  of  another  upon  the  principle  of  accession,  if 
he  took  the  other's  property  wilfully  as  a  trespasser,  though  he  might, 
by  his  skill  and  labor,  increase  its  value  a  thousand  fold.  But  it  seems 
to  us,  to  allow  the  owner  to  appropriate  the  labor  of  the  wrongdoer  in 
this  way  is  an  unjust  measure  of  redress.     *     *     * 

So,  in  this  case  before  us,  the  rule  seems  rigorous  and  unnecessarily 
severe,  which  says  the  defendants  muSt  lose  all  their  labor  bestowed  up- 
on the  logs,  providing  they  knew  at  the  time  they  cut  them  that  they 
did  not  own  the  land.  Let  the  plaintiff  have  full  compensation  for  the 
.trespass,  which  ordinarily  is  the  value  of  the  stumpage.  Hungerford 
V.  Redford,  29  Wis.  345.  But  it  is  inconsistent,  as  it  appears  to  us, 
with  the  general  principles  and  policy  of  the  law,  to  allow  the  plaintiff 
to  recover  the  value  of  the  logs  manufactured  into  lumber.  [The 
plaintiff  knew  of  the  defendant's  wilful  trespass  shortly  after  it  was 
committed.  He  took  no  steps  to  recover  the  logs,  but  marked  them 
and  kept  watch  of  them  at  the  mills  until  they  were  sawed.]  He  wait- 
ed until  this  was  done,  and  now  seeks  to  secure  for  himself  the  labor 
and  expense  of  another.  And  he  invokes  the  aid  of  the  principle  that 
a  wilful  trespasser  can  acquire  no  title  or  rights  in  the  property  of  an- 
other, however  much  he  may  have  added  to  its  value  by  his  labor  and 
workmanship.  There  were  no  circumstances  of  fraud,  malice  or  wan- 
ton injury  attending  the  trespass,  and  the  value  of  the  logs  cut— or,  as 
it  is  sometimes  called,  the  value  of  the  stumpage — would  seem  to  be  the 


186  ACQUISITION   OF  OWNERSHIP  (Ch.  i 

measure  of  just  compensation.    In  this  case  that  is  readily  ascertained 
from  the  verdict  of  the  jury.    The  plaintiff  must  remit  the  value  of  the 
labor  bestowed  ujxjn  59,350  feet  of  logs  as  found  by  the  jury,  or  there 
must  be  a  new  trial. 
Ordered  accordingly.^" 


RAILWAY  CO.  V.  HUTCHINS. 
(Supreme  Court  Commission  of  Oliio,  1S77.    32  Oliio  St.  .571,  30  Am.  Rep.  620.) 

[Action  to  recover  damages  for  the  conversion  of  wood.  The  judg- 
ment below  was  for  the  plaintiff  and  defendant  brings  error.] 

Wright,  J.^"^  We  have  not  deemed  it  necessary  to  solve  all  the 
nice  and  difficult  questions  that  relate  to  the  plaintiff's'  (Barbours')  title 
to  this  land.  Whether  or  not  they  had  the  legal,  they  did  also  claim 
an  equitable  title,  and  there  was  some  evidence  to  sustain  the  claim. 
This  question  of  fact  was  left  to  the  jury,  who  found  upon  it  for 
plaintiffs  below.  We  are  not  clear  that  this  finding  was  so  palpably 
against  the  weight  of  evidence  as  to  justify  interference  by  us.  We 
therefore  assume  that  plaintiffs  had  title  sufficient  to  maintain  the  ac- 
tion in  that  respect,  and  proceed  to  the  second  point,  the  rule  of  dam- 
ages. 

The  petition,  it  will  be  noticed,  is  not  as  for  a  trespass  to  real  estate, 
but  to  recover  the  value  of  the  wood  and  timber  stolen ;  the  action 
throughout  was  treated  as  one  to  recover  that  value,  and  the  case  is 
so  treated  here. 

Upon  the  point  now  to  be  determined,  the  case  is  thus :  A  large 
amount  of  wood  was  cut  down  upon  plaintiffs'  land,  and  stolen.  The 
thieves  work  it  up  into  cord-wood  and  ties,  thus  increasing  its  value 
three-fold.  The  depredators  then  sell  it  to  the  railroad  company,  who 
is  entirely  innocent  in  the  whole  matter.  The  real  owner  now  sues 
the  railroad  company  for  the  property  taken  from  his  land.  Shall  he 
recover  one  dollar  or  three? 

It  is  said  upon  the  one  hand  to  be  an  universal  rule  of  law  that  a 
^  man's  property  can  not  be  taken  from  him  without  his  consent,  unless 
by  law,  and  that  stealing  can  convey  no  title  to  the  thief.  In  Silsbury 
V.  McCoon,  3  N.  Y.  381,  53  Am.  Dec.  307,  it  is  said:  "It  is  an  ele- 
mentary principle  in  the  law  of  all  civilized  communities,  that  no  man 
can  be  deprived  of  his  property,  except  by  his  own  voluntary  act,  or 
by  operation  of  law.  The  thief  who  steals  a  chattel,  or  the  trespasser 
who  takes  it  by  force,  acquires  no  title  by  such  wrongful  taking."  It 
is  then  argued  that  the  thief,  having  none  himself,  could  convey  no 

30  Compare  Heard  v.  James,  49  Miss.  236  (1S73) ;  Tuttle  v.  Wilson,  52  Wis. 
643,  9  N.  W.  S22  (1^81).    See  St.  Wis.  1S9S,  §  42U9. 

31  Part  of  the  opinion  is  omitted. 


Sec.  3)  ACCESSION  187 

title  to  any  other  person  taking  it  however  innocently.  Hence  when 
the  railroad  company  obtained  the  property  they  obtained  what  was 
the  plaintiffs',  and  they  could  have  replevied  it,  increased  in  value  as 
it  was,  by  the  labor  of  the  thief.  If  this  were  so,  then  it  is  argued 
that  the  company  were  liable  for  the  value  of  the  wood  in  its  improved 
condition,  enhanced  to  the  extent  of  three-fold. 

If  the  owners  were  bringing  this  action  against  the  thieves,  perhaps 
it  might  be  conceded  that  the  full  amount  could  be  recovered.  This 
we  understand  to  be  upon  the  principle  "in  odium  spoliatoris."  The 
thief  will  not  be  allowed  to  have  anything  by  virtue  of  his  own  wrong, 
and  if  he  has  spent  his  labor  upon  stolen  goods,  he  shall  not  profit  by 
it.     It  is  his  own  loss. 

"The  English  law  will  not  allow  one  man  to  gain  a  title  to  the  prop- 
erty of  another,  upon  the  principle  of  accession,  if  he  took  the  other's 
property  willfully  as  a  trespasser."     2  Kent,  363. 

But  it  seems  to  be  well  understood  that  the  rights  of  the  parties  are 
made  to  depend,  to  a  great  extent,  upon  the  intent  with  which  the  con- 
version of  property  has  been  brought  about.  If  it  was  taken  mala 
fide,  by  theft,  or  with  a  willful  purpose  to  do  wrong,  the  consequences 
are  different  from  those  which  follow  upon  the  act  done  under  an  hon- 
est mistake,  and  perhaps  it  is  as  wise  to  punish  the  robber  as  to  protect 
the  innocent.     *     *     * 

That  the  intent  of  the  defendant  is  material  in  regard  to  damages, 
has  always  been  recognized  in  our  law.  Upon  this  is  founded  the 
whole  idea  of  exemplary  damages.  We  know  it  has  been  strenuously 
urged  in  what  has  been  called  "the  speculative  notions  of  fanciful 
writers"  (McBride  v.  McLaughlin,  5  Watts  (Pa.)  375 ;  Sedgw.  463), 
that  punishment  belongs  only  to  the  administration  of  criminal  law, 
and  has  no  proper  place  in  that  civil  procedure  which  adjusts  only  the 
rights  of  parties;  but  the  principle  is  too  firmly  settled  to  be  contro- 
verted now.  Pratt  v.  Pond,  42  Conn.  318;  Walker  v.  Fuller,  29  Ark. 
448;  Grund  v.  Van  Vleck,  69  111.  478.  And  yet  the  rule  should  be 
carefully  applied,  as  it  may  leave  to  courts  and  juries  to  detennine 
the  extent  of  punishment  unrestricted  by  the  well-defined  limits  of 
statutory  enactment.  Therefore  it  is  that  there  are  authorities  hold- 
ing that  even  in  cases  of  willful  trespass,  if  the  trespasser  has  made  a 
large  increase  in  the  value  of  the  property  by  his  labor,  it  will  not  be 
allowed  that  it  shall  all  go  to  the  original  owner,  because  it  is  said  to 
be  unjust. 

The  fact  that  the  trespasser  is  to  lose  the  labor  and  expense  he  has 
put  upon  property  he  has  wrongfully  taken,  results  as  a  punishment  to 
him  for  what  he  has  done ;  on  this  ground  the  original  owner  recovers 
the  increased  value,  not  because  of  any  rights  in  him,  but  because  the 
law  gives  this  infliction,  as  a  terror  to  offenders.  Yet  the  punishment 
must  be  proportioned  in  some  way  to  the  circumstances  of  the  case. 


ISS  _  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

and  a  proper  inquiry  is,  in  what  manner  and  to  what  extent  should  the 
trespasser  suffer,  and  conversely  what  should  be  the  kind  and  meas- 
ure of  redress  to  the  injured  party. 

Brown,  [Bronson]  J.,  puts  this  case  (Silsbury  v.  McCoon,  4  Denio 
[N.  Y.]  337) :  A  trespasser  who  takes  iron  ore  and  converts  it  into 
watch-springs,  by  which  its  value  is  increased  a  thousand  fold,  should 
not  be  hanged ;  nor  should  he  lose  the  whole  of  the  new  product.  Ei- 
ther punishment  would  be  too  great.  Nor  should  the  owner  of  the 
ore  have  the  watch-springs,  for  it  would  be  more  than  a  just  measure 
of  redress. 

The  Supreme  Court  of  Wisconsin  adopts  the  same  idea.  The  case 
of  Single  v.  Schneider,  30  Wis.  570,  is  a  case  where  logs  were  will- 
fully cut  from  the  premises  of  another,  they  say  it  is  unnecessarily 
severe  that  defendant  should  lose  the  value  of  all  their  labor.  S.  c.  24 
Wis.  299;  Weymouth  v.  C.  &  N.  W.  R.  R.,  17  Wis.  550,  84  Am.  Dec. 
763 ;  Hungerford  v.  Redford,  29  Wis.  345.  An  interesting  discussion 
of  the  question  of  damages  by  Judge  Cooley  is  to  be  found  in  Wether- 
bee  V.  Green,  22  Mich.  311,  7  Am.  Rep.  653,  the  syllabus  of  which 
is :  "No  test  which  satisfies  the  reason  of  the  law  can  be  applied  in 
the  adjustment  of  questions  of  title  to  chattels,  by  accession,  imless 
it  keeps  in  view  the  circumstances  of  relative  values.  The  purpose 
of  the  law  will  not  be  gained  by  establishing  arbitrary  distinctions 
based  upon  physical  reasons;  but  its  object  must  be  to  adjust  the  re- 
dress aft'orded  to  one  party  and  the  penalty  inflicted  on  th&  other,  as 
near  as  the  circumstances  will  permit,  to  rules  of  substantial  justice,  if 
very  great  increase  in  value  in  the  change  of  property  from  one  form 
to  another,  is  of  more  importance  in  determining  the  rights  of  par- 
ties in  it,  than  any  inexpensive  chemical  change  of  mechanical  trans- 
formation, however  radical.  And  where  timber  of  the  value  of  $25 
had  been,  in  the  exercise  of  what  was  supposed  to  be  proper  authority, 
converted  into  hoops,  of  the  value  of  $700,  the  title  to  the  property, 
in  its  converted  form,  passed  to  the  party  by  whose  labor,  in  good 
faith,  the  change  had  been  wrought."  In  this  case  it  was  a  conceded 
fact  that  the  taking  of  the  timber  was  in  good  faith,  defendant  sup- 
posing that  he  had  a  license  so  to  do  from  the  owner  of  the  land.  In 
this,  however,  it  appears  he  was  mistaken.  Judge  Cooley  discusses 
very  fully  the  distinction  between  cases  where  property  is  taken  inno- 
cently, and  where  it  is  taken  dishonestly,  and  recognizes  the  proposi- 
tion that  the  rule  of  damages  is  varied  accordingly.  He  also  discusses 
the  rule  already  so  frequently  spoken  of,  that  when  the  owner  can 
trace  the  identity  of  his  property,  he  may  reclaim  it  however  it  may 
be  increased  in  value.  But  this  he  seems  to  think  an  unsatisfactory 
test,  tlie  purpose  of  the  law  being  to  adjust  the  redress  afforded  to  the 
one  party,  and  the  penalty  inflicted  upon  the  other,  as  near  as  the  cir- 
cumstances will  permit,  to  the  rules  of  substantial  justice.    If  one  had 


Sec.  3)  ACCESSION  189 

a  stick  of  timber  stolen,  and  could  distinctly  trace  it  into  a  house  be- 
ing newly  built,  the  identification  might  be  beyond  peradventure,  yet 
no  one  would  claim  that  the  owner  of  the  stick  could  recover  the 
whole  house,  either  in  ejectment  or  its  value  in  damages.  Or  a  par- 
ticular piece  of  wood  might  be  followed  into  an  organ,  but  the  owner 
of  the  wood  could  not  replevy  the  organ.  Where  the  right  to  the  im- 
proved articles  is  the  point  in  issue,  certainly  the  question  should  be 
considered,  how  much  the  property  or  labor  of  each  has  contributed 
to  make  it  what  it  is,  at  least  in  those  cases  where  no  bad  faith  ex- 
ists. 

It  can  not  therefore  be  true,  in  every  instance,  that  because  a  man 
can  trace  his  property,  he  can  always  recover  it,  regardless  of  the 
circumstances  under  which  it  has  come  into  the  hands  of  the  present 
holder,  regardless  of  its  improved  condition,  and  regardless  of  the 
injury  an  absolute  and  unconditional  recaption  may  occasion.  The 
law  as  Judge  Cooley  says,  endeavors  to  do  what  is  right  and  just  be- 
tween the  parties,  and  while  it  will  seek  to  compensate  the  real  owner, 
will  not  occasion  outrage  to  one  who  has  been  innocent. 

It  may  be  that  if  these  owners  had  found  their  wood  in  the  hands 
of  the  trespassers,  it  might  have  been  retaken,  or  its  value  as  cord 
wood  recovered ;  but  if  so  it  would  be  upon  the  principle  "in  odium 
spoliatoris" ;  the  thief  could  gain  nothing  by  his  own  wrong,  and 
therefore  the  results  of  his  labor  go  to  the  owner  of  the  property.  But 
this  principle  can  not  apply  where  an  innocent  purchaser  comes  into 
the  case,  for  the  simple  reason  that  he  has  done  no  wrong. 

It  is  very  true  that  die  willful  trespasser  or  thief  can  convey  no  title 
to  one  to  whom  he  sells,  however  innocent  the  purchaser  may  be.  But 
the  question  right  here  is,  what  does  "title"  in  this  connection  mean? 
The  original  owner  has  the  "title"  to  his  timber,  and,  as  against  the 
thief,  the  title  to  the  results  of  the  thief's  labor.  The  wrong-doer  as 
it  were,  being  estopped  from  setting  up  any  claim  by  virtue  of  the 
wrong  he  has  done.  Against  the  innocent  purchaser  from  the  thief, 
the  original  owner  still  has  the  "title"  to  his  timber,  but  by  virtue  of 
what  does  he  now  have  "title"  to  the  thief's  labor?  The  estoppel,  so 
to  call  it,  being  created  by  fraud  or  wrong,  exists  only  against  the 
one  guilty  of  that  fraud  or  wrong,  which  the  purchaser  is  not,  and 
while  it  is  effectual  against  the  wrong-doer,  the  reason  of  it  does  not 
exist  as  against  the  innocent  man,  as  to  whom  it  therefore  fails.  As 
Judge  Cooley  says,  it  does  not  comport  with  notions  of  justice  and 
equity,  that  against  those  who  have  done  no  wrong,  these  owners 
should  recover  three  times  the  value  of  what  they  have  lost.  They 
have  never  spent  one  cent  of  money,  nor  one  hour  of  labor,  in  chang- 
ing this  timber  worth  one  dollar,  into  cord  wood  worth  three.  All 
this  was  done  by  some  one  else,  and  why  should  the  owners  recover 
for  it?     If  they  are  compensated  for  what  they  have  lost,  and  all 


190  ACQUISITION   OF   OWXEHSHIP  (CIl.  4 

they   have   lost,   they   are   certainly   fully   paid.     Woolsey  v.    Seeley, 
Wright,  360.    And  this  is  all  they  should  be  allowed  to  recover. 

For  this  error,  in  the  charge  on  the  subject  of  damages,  tlie  judg- 
ment is  reversed.'^ 


WOODEN-WARE  CO.  v.  UNITED  STATES. 

(Supreme  Court  of  tbe  United  States,  1SS2.    106  L'.  S.  432,  1  Sup.  Ct.  39S,  27 

L.  Ed.  230.) 

[Action  in  the  nature  of  trover  brought  by  the  United  States  for 
the  value  of  242  cords  of  ash  timber.  The  timber  was  knowingly 
and  wrongfully  cut  by  Indians  on  government  land,  taken  by  them  to 
the  town  of  Depere  and  sold  to  the  defendant  company.  The  latter 
is  not  chargeable  with  any  intentional  wrong  or  bad  faith.  The  value 
of  the  timber  on  the  ground  after  it  was  felled  was  $60.71  for  the 
whole  amount;  at  the  town  where  the  defendant  bought  it,  $850.00 
for  the  whole  amount.  Judgment  was  rendered  against  the  defendant 
for  the  latter  sum.    Defendant  brought  error.] 

Miller,  J.^^  *  *  *  \Yq  cannot  follow  counsel  for  the  plaintiff 
in  error  through  the  examination  of  all  the  cases,  both  in  England  and 
this  country,  which  his  commendable  research  has  enabled  him  to  place 
upon  the  brief.  In  the  English  courts  the  decisions  have  in  the  main 
grown  out  of  coal  taken  from  the  mine,  and  in  such  cases  the  principle 
seems  to  be  established  in  those  courts,  that  when  suit  is  brought  for 
the  value  of  the  coal  so  taken,  and  it  has  been  the  result  of  an  honest 
mistake  as  to  the  true  ownership  of  the  mine,  and  the  taking  was  not 
a  wilful  trespass,  the  rule  of  damages  is  the  value  of  the  coal  as 
it  was  in  the  mine  before  it  was  disturbed,  and  not  its  value  when  dug 
out  and  delivered  at  the  mouth  of  the  mine.  Martin  v.  Porter,  5  Mee. 
&  W.  351 ;  Morgan  v.  Powell,  3  Ad.  &  E.  N.  S.  278;  Wood  v.  More- 
wood,  3  Id.  440;  Hilton  v.  Woods,  Law  Rep.  4  Eq.  432;  Jegon  v. 
Vivian,  Law  Rep.  6  Ch.  App.  742. 

The  doctrine  of  the  English  courts  on  this  subject  is  probably  as 
well  stated  by  Lord  Hatherley  in  the  House  of  Lords,  in  the  case 
of  Livingstone  v.  Rawyards  Coal  Co.,  5  App.  Cas.  25,  as  anywhere  else. 
He  said:  "There  is  no  doubt  that  if  a  man  furtively,  and  in  bad  faith, 
robs  his  neighbor  of  his  property,  and  because  it  is  underground  is 
probably  for  some  little  time  not  detected,  the  court  of  equity  in  this 
country  will  struggle,  or,  I  would  rather  say,  will  assert  its  authority 
to  punish  the  fraud  by  fixing  the  person  with  the  value  of  the  whole 
of  the  property  which  he  has  so  furtively  taken,  and  making  him  no 

3  2  Ace.:  Wright  v.  E.  E.  Bolles  Wooden  Ware  Co.,  50  Wis.  167,  6  N.  W.  SOS 
(ISSO). 

33  Part  of  the  opinion  is  omitted. 


Sec.  3)  ACCESSION  191 

allowance  in  respect  of  what  he  has  so  done,  as  would  have  been  just- 
ly made  to  him  if  the  parties  had  been  working  by  agreement."  But 
"when  once  we  arrive  at  the  fact  that  an  inadvertence  has  been  the 
cause  of  the  misfortune,  then  the  simple  course  is  to  make  every  just 
alk)wance  for  outlay  on  the  part  of  the  person  w'ho  has  so  acquired 
the  property,  and  to  give  back  to  the  owner,  so  far  as  is  possible 
under  the  circumstances  of  the  case,  the  full  value  of  that  which  can- 
not be  restored  to  him  in  specie." 

There  seems  to  us  to  be  no  doubt  that  in  the  case  of  a  wilful  tres- 
pass the  rule  as  stated  above  is  the  law  of  damages  both  in  England 
and  in  this  country,  though  in  some  of  the  State  courts  the  milder  rule 
has  been  applied  even  in  this  class  of  cases.  Such  are  some  that  are 
cited  from  Wisconsin.  \\^eymouth  v.  Chicago  &  Northwestern  Rail- 
wav  Co.,  17  Wis.  550,  84  Am.  Dec.  763 ;  Single  v.  Schneider,  24  Wis. 
299. 

On  the  other  hand,  the  weight  of  authority  in  this  country  as  well 
as  in  England  favors  the  doctrine  that  where  the  trespass  is  the  result 
of  inadvertence  or  mistake,  and  the  wrong  was  not  intentional  the 
value  of  the  propert)'  when  first  taken  must  govern;  or  if  the  con- 
version sued  for  was  after  value  had  been  added  to  it  by  the  work  of 
the  defendant,  he  should  be  credited  with  this  addition. 

Winchester  v.  Craig,  33  ^lich.  205,  contains  a  full  examination  of  the 
authorities  on  the  point.  Heard  v.  James,  49  Miss.  236;  Baker  v. 
Wheeler,  8  Wend.  (N.  Y.)  505,  24  Am.  Dec.  66 ;  Baldwin  v.  Porter, 
12  Conn.  484. 

While  these  principles  are  sufficient  to  enable  us  to  fix  a  measure 
of  damages  in  both  classes  of  torts  where  the  original  trespasser  is 
defendant,  there  remains  a  third  class,  where  a  purchaser  from  him  is 
sued,  as  in  this  case,  for  the  conversion  of  the  property  to  his  own 
use.  In  such  case,  if  the  first  taker  of  the  property  were  guiltv  of 
no  W'ilful  wrong,  the  rule  can  in  no  case  be  more  stringent  against 
the  defendant  who  purchased  of  him  than  against  his  vendor. 

But  the  case  before  us  is  one  where,  by  reason  of  the  wilful  wrong 
of  the  party  who  committed  the  trespass,  he  was  liable,  under  the 
rule  we  have  supposed  to  be  established,  for  the  value  of  the  timber 
at  Depere,  the  moment  before  he  sold  it,  and  the  question  to  be  de- 
cided is  whether  the  defendant  who  purchased  it  then  with  no  notice 
that  the  property  belonged  to  the  United  States,  and  with  no  inten- 
tion to  do  wrong,  must  respond  by  the  same  rule  of  damages  as  his 
vendor  should  if  he  had  been  sued. 

It  seems  to  us  that  he  must.  The  timber  at  all  stages  of  the  con- 
version was  the  property  of  plaintiff.  Its  purchase  by  defendant 
did  not  divest  the  title  nor  the  right  of  possession.  The  recovery 
of  any  sum  whatever  is  based  upon  that  proposition.  This  right,  at 
the  moment  preceding  the  purchase  by  defendant  at  Depere,  was  per- 


192  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

feet,  with  no  riglit  in  any  one  to  set  up  a  claim  for  work  and  labor 
bestowed  on  it  by  the  wrong-doer.  It  is  also  plain  that  by  purchase 
from  the  wrong-doer  defendant  did  not  acquire  any  better  title  to  the 
property  than  his  vendor  had.  It  is  not  a  case  where  an  innocent  pur- 
chaser can  defend  himself  under  that  plea.  If  it  were,  he  would  be 
liable  to  no  damages  at  all,  and  no  recovery  could  be  had.  On  the 
contrary,  it  is  a  case  to  which  the  doctrine  of  caveat  emptor  applies, 
and  hence  the  right  of  recovery  in  plaintilf. 

On  what  ground,  then,  can  it  be  maintained  that  the  right  to  re- 
cover against  him  should  not  be  just  what  it  was  against  his  ven- 
dor the  moment  before  he  interfered  and  acquired  possession?  If 
the  case  were  one  which  concerned  additional  value  placed  upon  the 
property  by  the  work  or  labor  of  the  defendant  after  he  had  pur- 
chased, the  same  rule  might  be  applied  as  in  case  of  the  inadvertent 
trespasser. 

But  here  he  has  added  nothing  to  its  value.  He  acquired  posses- 
sion of  property  of  the  United  States  at  Depere,  which,  at  that  place, 
and  in  its  then  condition,  is  worth  $850,  and  he  wants  to  satisfy  the 
claim  of  the  government  by  the  payment  of  $60.  He  founds  his  right 
to  do  this,  not  on  the  ground  that  anything  he  has  added  to  the  prop- 
erty has  increased  its  value  by  the  amount  of  the  difference  between 
these  two  sums,  but  on  the  proposition  that  in  purchasing  the  prop- 
erty he  purchased  of  the  wrong-doer  a  right  to  deduct  what  the  labor 
of  the  latter  had  added  to  its  value. 

If,  as  in  the  case  of  an  unintentional  trespasser,  such  right  existed, 
of  course  defendant  would  have  bought  it  and  stood  in  his  shoes ; 
but  as  in  the  present  case,  of  an  intentional  trespasser,  who  had  no 
such  right  to  sell,  the  defendant  could  purchase  none.     *     *     * 

To  establish  any  other  principle  in  such  a  case  as  this  would  be  very 
disastrous  to  the  interest  of  the  public  in  the  immense  forest  lands  of 
the  government.  It  has  long  been  a  matter  of  complaint  that  the 
depredations  upon  these  lands  are  rapidly  destroying  the  finest  forests 
in  the  world.  Unlike  the  individual  owner,  who,  by  fencing  and  vigi- 
lant attention,  can  protect  his  valuable  trees,  the  government  has  no 
adequate  defence  against  this  great  evil.  Its  liberality  in  allowing 
trees  to  be  cut  on  its  lands  for  mining,  agricultural,  and  other  specified 
uses  has  been  used  to  screen  the  lawless  depredator  who  destroys 
and  sells  for  profit. 

To  hold  that  when  the  government  finds  its  own  property  in  hands 
but  one  remove  from  these  wilful  trespassers,  and  asserts  its  right 
to  such  property  by  the  slow  processes  of  the  law,  the  holder  can  set 
up  a  claim  for  the  value  which  has  been  added  to  the  property  by  the 
guilty  party  in  the  act  of  cutting  down  the  trees  and  removing  the  tim- 
ber, is  to  give  encouragement  and  reward  to  the  wrong-doer,  by  pro- 
viding a  safe  market  for  what  he  has  stolen  and  compensation  for  the 


Sec.  3)  ACCESSION  19.3 

labor  he  has  been  compelled  to  do  to  make  his  theft  effectual  and 
profitable. 

We  concur  with  the  circuit  judge  in  this  case,  and  the  judgment  of 
the  Circuit  Court  is  affirmed.^* 


PEIRCE  V.  GODDARD. 

(Supreme    Judicial    Court   of    Massachusetts,    1839.     22    Pick.    559,   33    Am. 

Dec.  764.) 

Wilde,  J.^°  This  action  is  submitted  on  an  agreed  statement  of 
facts,  by  which  it  appears  that  one  Davenport,  being  the  owner  of  a  lot 
of  land  with  a  dwellinghouse  thereon,  mortgaged  the  same  to  the  plain- 
tiff; that  afterwards  he  took  down  the  house,  and  with  the  ma- 
terials partly,  and  partly  with  new  materials,  built  a  new  house  on 
another  lot  of  his  at  some  distance;  and  that  after  the  new  house 
was  completed,  he  for  a  valuable  consideration,  sold  the  last  mentioned 
lot  and  house  to  the  defendant. 

There  are  two  counts  in  the  declaration,  one,  for  the  conversion  of 
the  newly  erected  house,  and  the  other,  for  the  conversion  of  the  ma- 
terials with  which  it  was  built,  belonging  to  the  old  house. 

The  plaintiff's  counsel  insist,  that  the  old  house  was  the  property 

3*  Ace:   Tuttle  v.  Wliite.  46  Jlicli.  4S.5,  9  N.  W.  528,  41  Am.  Rep.  175  (ISSl). 

Ace,  in  alternative  judaments  for  damages  in  actions  of  replevin:  Peters 
Box  &  Lumlier  Co.  v.  Lesh,  119  Ind.  98,  20  N.  E.  291,  12  Am.  St.  Rep.  367 
(ISsn) ;  Strubbee  v.  Trustees  of  Cincinnati  Ry.,  78  Ky.  481,  39  Am.  Rep.  251 
(1880). 

Ace,  where  the  defendant  bought  with  the  knowledge  of  the  original  con- 
vertor's  bad  faith  and  had  not  added  value  since  his  purchase.  Pine  River 
Logging  &  Improvement  Co.  v.  United  States,  186  U.  S.  279,  22  Sup.  Ct.  920, 
46  L.  Ed.  1164  (1002). 

A.  in  good  faith,  but  tortiously,  converted  X.'s  timber,  cut  it  into  boards, 
and  sold  them  to  B.,  who  bought  in  good  faith.  Held,  X.  recovers  from  B. 
the  value  at  the  time  of  A.'s  original  conversion.  Whitnev  v.  Huntington,  37 
Minn.  197,  ZZ  X.  W.  561  (1887) ;  Wall  v.  HoUoman.  156  X.  C.  275,  72  S.  E. 
369  (1911).    Compare  Glaspy  v.  Cabot,  135  Mass.  435  (1SS.3). 

A.  tortiously  and  in  bad  faith  cut  X.'s  timber,  and  sold  it  to  B.,  who  bought 
in  good  faith.  B.  transported  it  to  a  city  and  sold  it  to  C,  who  bought  in  good 
faith.  Held.  X.  may  recover  from  C.  the  value  at  the  time  of  his  purchase. 
Nesbitt  V.  St.  Paul  Lumber  Co.,  21  Minn.  491  (187.5). 

A.  tortiously  and  in  bad  faith  cut  timber  on  X.'s  land.  A.  purported  to  sell 
the  logs  to  B.,  who  in  good  faith  made  advances  to  A.  on  the  logs.  A.  subse- 
quently delivered  them  to  B.  Held,  X.  recovers  from  B.  the  value  at  the 
time  the  advances  were  made.  Fisher  v.  Brown,  70  Fed.  570,  17  C.  C.  A.  225 
(1895). 

A.  tortiously  and  in  bad  faith  took  crude  gum  from  X.'s  land,  B.  bought  it 
in  good  faith,  mixed  it  with  other  gum,  distilled  from  it  turpentine,  and  sold 
the  turpentine  to  C,  who  bought  in  good  faith.  Held,  X.  cannot  maintaiu 
trover  against  C.    TJ.  S.  v.  Waters-Pierce  Oil  Co.  (C.  C.)  ISO  Fed.  309  (1910). 

See,  also.  Dolliff  v.  Robbins,  S3  Minn.  498,  86  X.  W.  772,  85  Am.  St.  Rep.  466 
(1001). 

35  The  statement  of  facts  and  part  of  the  opinion  is  omitted. 
Bio.Pebs.Pkop. — 13 


194  ACQUISITION   OF  OWNERSHIP  (Cll.  4 

of  the  plaintiff,  and  that  Davenport  had  no  right  to  take  it  down, 
and  could  not  therefore  acquire  any  property  in  the  materials  by  such 
a  wrongful  act;  that  the  new  house,  being  built  with  the  materials 
from  the  old  house  in  part,  became  the  property  of  the  plaintiff,  al- 
though new  materials  were  added,  by  right  of  accession ;  and  that 
Davenport,  having  no  property  in  the  house,  as  against  the  plaintiff', 
could  convey  no  title  to  it  to  the  defendant. 

That  Davenport  is  responsible  for  taking  down  and  removing  the 
old  house,  cannot  admit  of  a  doubt;  but  it  does  not  follow,  that  the 
property  in  the  new  house  vested  in  the  plaintiff. 

The  rules  of  law,  by  which  the  right  of  property  may  be  acquired 
by  accession  or  adjunction,  were  principally  derived  from  the  civil 
law,  but  have  been  long  sanctioned  by  the  courts  of  England  and  of 
this  country  as  established  principles  of  law. 

The  genera!  rule  is,  that  the  owner  of  property,  whether  the  prop- 
erty be  movable  or  immovable,  has  the  right  to  that  which  is  united 
to  it  by  accession  or  adjunction.  But  by  the  law  of  England  as  well 
as  by  the  civil  law,  a  trespasser,  who  wilfully  takes  the  property  of 
another,  can  acquire  no  right  in  it  on  the  principle  of  accession,  but  the 
owner  may  reclaim  it,  whatever  alteration  of  form  it  may  have  under- 
gone, unless  it  be  changed  into  a  different  species  and  be  incapable  of 
being  restored  to  its  former  state ;  and  even  then  the  trespasser,  by 
the  civil  law,  could  acquire  no  right  by  the  accession,  unless  the  ma- 
terials had  been  taken  away  in  ignorance  of  their  being  the  property  of 
another.  2  Kent's  Comm.'362;  Betts  v.  Lee,  5  Johns.  (N.  Y.)  348,  4 
Am.  Dec.  368.    But  there  are  exceptions  to  the  general  rule. 

It  is  laid  down  by  Molloy  as  a  settled  principle  of  law,  that  if  a 
man  cuts  down  the  trees  of  another,  or  takes  timber  or  plank  prepared 
for  the  erecting  or  repairing  of  a  dwellinghouse,  may,  though  some  of 
them  are  for  shipping,  and  builds  a  ship,  the  property  follows  not 
the  owners  but  the  builders.    Mol.  de  Jure  Mar.  lib.  2,  c.  1,  §  7. 

Another  similar  exception  is  laid  down  by  Chancellor  Kent  in  his 
Commentaries,  which  is  directly  in  point  in  the  present  case.  If,  he 
says,  A.  builds  a  house  on  his  own  land  with  the  materials  of  another, 
the  property  in  the  land  vests  the  property  in  the  building  by  right 
of  accession,  and  the  owner  of  the  land  would  only  be  obliged  to  an- 
swer to  the  owner  of  the  materials  for  the  value  of  them.  2  Kent's 
Comm.  360,  361.  This  principle  is  fully  sustained  by  the  authorities. 
In  Bro.  tit.  Property,  pi.  23,  it  is  said,  that  if  timber  be  taken  and  made 
into  a  house,  it  cannot  be  reclaimed  by  the  owner ;  for  the  nature  of  it 
is  changed,  and  it  has  become  a  part  of  the  freehold.  In  Moore,  20, 
it  was  held,  that  if  a  man  takes  trees  of  another  and  makes  them  into 
boards,  still  the  owner  may  retake  them,  but  that  if  a  house  be  made 
with  the  timber  it  is  otherwise.     *     *     * 

The  case  of  Russell  v.  Richards,  10  Me.  429,  25  Am.  Dec.  254,  cit- 
ed by   the   plaintiff's  counsel,   was   decided   on   the  ground,  that  the 


Sec.  4)  CONFUSION  195 

building  in  controversy  was  personal  property  and  had  never  become 
a  part  of  the  freehold.  In  the  present  case  it  cannot  be  questioned, 
that  the  newly  erected  dwellinghouse  was  a  part  of  the  freehold,  and 
was  the  property  of  Davenport.  The  materials  used  in  its  construc- 
tion ceased  to  be  personal  property,  and  the  owner's  property  in  them 
was  divested,  as  effectually  as  though  they  had  been  destroyed.  It  is 
clear,  therefore,  that  the  plaintiff  could  not  maintain  an  action  even 
against  Davenport,  for  the  conversion  of  the  new  house.  And  it  is 
equally  clear,  that  he  cannot  maintain  the  present  action  for  the  con- 
version of  the  materials  taken  from  the  old  house.  The  taking  down 
that  house  and  using  the  materials  in  the  construction  of  the  new 
building,  was  the  tortious  act  of  Davenport,  for  which  he  alone  is 
responsible. 

Plaintiff  nonsuit.^* 


SECTION  4.— CONFUSION 


CARPENTER  v.  GRIFFIN. 

(Court  of  Chancery  of  New  York,  1841.    9  Paige,  310,  37  Am.  Dec.  396.) 

Theodosius  O.  Fowler,  in  October,  1836,  leased  to  the  defendant 
Spencer  a  farm,  with  the  sheep  then  on  it,  and  thirty  cows  for  the 
term  of  five  years  from  the  first  of  January,  1837,  for  the  rent  of 
$350  annually.  And  the  lease  contained  the  following  clause  relative 
to  the  cows  and  sheep,  which  was  the  only  provision  in  the  lease  re- 
specting the  same:  "Cows  of  equal  age  and  quality  to  be  returned  at 
the  end  of  the  said  term,  and  also  the  sheep."  On  the  5th  of  July, 
1839,  Fowler  sold  the  farm  to  the  complainant,  with  all  his  interest 
in  the  personal  property,  stock,  farming  utensils,  etc.  In  1837,  Spen- 
cer purchased  and  put  upon  the  farm  thirteen  cows  in  addition  to  those 
mentioned  in  the  lease,  and  in  1839,  seven  other  cows ;  all  of  which, 
as  stated  in  the  answer,  were  purchased  with  his  own  funds.  These 
twenty  cows,  together  with  eight  of  the  cows  mentioned  in  the  lease, 
and  nine  others  which  were  raised  on  the  farm  or  procured  with  the 
proceeds  of  cows  and  sheep  sold,  were  remaining  on  the  premises  in 
December,  1839,  when  they  were  levied  on  by  executions  in  favor  of 
the  defendant  Griffin  against  Spencer.  .\nd  the  hay,  farming  tools, 
and  dairy  utensils,  of  Spencer,  on  the  farm,  were  also  levied  on  by 

36  Ace:    Eicketts  v.  Dorrel,  55  Ind.  470  (1S7C). 

A.  tortiously  and  In  bad  faith  removed  a  small  house  from  X.'s  land,  and 
sold  it  to  B.,  who  bought  with  notice  of  the  facts.  B.  put  the  house  on  a 
foundation  on  other  laud  l)elouging  to  B.  Held,  X.  may  replevy  the  house 
from  B.    Central  Branch  R.  Co.  v.  Fritz,  20  Kan.  430,  27  Am.  Rep.  175  (1S7S). 


19G  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

virtue  of  such  executions.  The  complainant  thereupon  filed  his  bill 
in  this  cause,  and  procured  an  injunction  to  restrain  the  defendant 
Griffin  from  selling  the  property  under  his  executions  or  removing  the 
same,  from  the  farm ;  and  to  restrain  Spencer  from  selling  or  dispos- 
ing of  the  cows. 

The  ChaJtcellor  =^  [Reuben  H.  Walworth].  *  *  *  The 
only  question  *  *  *  which  remains  for  consideration  relates  to 
the  cows.     *     *     * 

I  infer  from  the  terms  of  the  lease,  however,  that  it  was  not  con- 
templated by  the  parties  to  that  instrument  that  the  same  cows  which 
were  leased  with  the  farm  should  be  returned  at  the  end  of  the  five 
years;  but  that  the  lessee  should  return  to  his  landlord,  at  the  end  of 
the  term,  thirty  cows,  of  the  same  age,  and  equal  in  value  to  those 
which  were  received  at  the  commencement  of  the  term.  If  such  was 
the  intent  and  meaning  of  the  contract,  I  do  not  see  how  this  case 
can  be  distinguished  from  that  of  Hurd  v.  West,  7  Cow.  R.  752.  In 
that  case  the  supreme  court  decided  that  where  a  certain  number  of 
sheep  were  hired  by  A.  to  B.  at  a  pound  of  wool  a  head  per  annum, 
and  at  the  expiration  of  the  time  limited,  B.  was  to  return  to  him  the 
same  number  of  sheep  and  of  as  good  quality,  the  title  to  the  sheep 
did  not  continue  in  A. ;  but  that  the  lessee  might  dispose  of  the  sheep 
let,  and  return  other  sheep  of  the  same  value  at  the  time  appointed  for 
the  fulfilment  of  the  contract  on  his  part. 

In  the  present  case  the  stipulation  in  the  lease  is,  to  return,  at  the 
end  of  the  five  years,  cows  of  equal  age  and  quality ;  which  necessarily 
excludes  the  idea  that  the  identical  cows  put  on  by  the  landlord  were 
to  be  returned  to  him  at  the  expiration  of  the  term.  For  those  cows 
could  not  be  of  equal  age,  although  they  might  possibly  be  of  equal 
value,  with  the  thirty  cows  when  they  were  put  on  to  the  farm  in 
January,  1837.     *     *     * 

Without  any  stipulation  on  the  subject,  it  is  impossible  to  discover 
upon  what  principle  the  complainant,  in  the  present  case,  can  claim 
the  right  to  the  cows  which  have  been  purchased  by  the  tenant  with 
his  own  funds.  *  *  *  As  to  the  eight  cows  remaining  of  those 
which  were  put  on  to  the  farm  at  the  commencement  of  the  term,  and 
those  which  have  been  bought  with  the  avails  of  cows  or  sheep  which 
have  since  been  sold  by  the  tenant,  there  might  have  been  some  room 
for  resisting  the  claim  of  the  creditor  to  a  preference,  by  virtue  of  his 
execution,  if  the  term  had  expired  before  the  property  was  levied  on; 
so  as  to  have  entitled  the  complainant  to  an  immediate  return  of  the 
cows  and  sheep  mentioned  in  the  lease,  according  to  the  stipulation 
therein  contained.  But  applying  the  well  established  principles  of  law 
to  the  written  contract  between  the  landlord  and  his  tenant,  in  this 
case,  I  am  bound  to  decide  that  the  legal  title  to  the  cows  and  sheep 

3'  The  statement  of  facts  is  abridged  and  part  of  tlie  opinion  is  omitted. 


Sec.  4)  CONFUSION  197 

put  on  the  farm  at  the  commencement  of  the  term  passed  to  the  ten- 
ant, so  as  to  give  him  the  right  to  dispose  of  them,  and  to  subject 
them  to  seizure  and  sale  for  his  debts.  By  the  lease  the  landlord  has 
not  secured  to  himself  any  legal  or  equitable  lien  upon  those  cows  and 
sheep,  or  upon  others  that  may  be  brought  on  to  the  farm  by  the  ten- 
ant, but  which  shall  not  belong  to  him  at  the  expiration  of  the  lease. 
And  he  has  only  the  right  to  compel  Spencer,  at  the  end  of  the  term, 
to  restore  to  him  an  equal  number  of  cows  and  sheep  of  the  same  ages 
as  those  leased  with  the  farm  at  the  time  the  tenancy  commenced,  and 
of  the  same  value. 

The  injunction  must  therefore  be  dissolved  as  to   both  defend- 
ants.'«     *     *     * 


SOUTH  AUSTRALIAN  INS.  CO.  v.  RANDELL  et  al 
(Judicial  Committee  of  the  Priry  Council,  1869.    L,.  R.  3  P.  C.  101.) 

This  was  an  action  on  a  fire  policy  of  insurance,  in  which  the  re- 
spondents were  plaintiffs,  and  the  appellants  were  defendants. 

The  appellants  were  an  insurance  company,  carrying  on  business  in 
the  province  of  South  Australia,  and  having  their  principal  place  of 
business  at  Adelaide,  in  that  province.  The  respondents  were  millers, 
carrying  on  business  at  Blumberg,  in  the  same  province. 

The  facts  were  these: 

On  the  4th  of  July,  1866,  application  was  made  to  the  appellants  by 
the  respondents,  to  insure  the  current  stock  in  their  mill,  namely, 
wheat,  flour,  sacks,  etc.,  to  the  amount  of  £1,250.  against  loss  or  dam- 
age by  fire,  and  on  the  same  day  an  insurance  was  eft'ected  in  the  terms 
of  such  application,  and  subject  to  the  conditions  indorsed  on  the 
policy ;  one  of  which  was  that  "goods  held  in  trust  or  on  commis- 
sion must  be  insured  as  such,  otherwise  the  policy  will  not  extend  to 
cover  them." 

On  the  17th  of  February,  1867,  a  fire  occurred,  whereby  the  re- 
spondents' mill,  with  the  stock  therein,  was  destroyed.  A  claim  was 
made  by  the  respondents  for  the  loss,  but  the  amount  being  disputed 
by  the  appellants,  an  action  was  brought  by  them  to  recover  the  value 
of  the  stock. 


3  8  Compare  Bellows  t.  Denison,  9  N.  H.  293  (1S3S). 

"I  agree  to  take  all  the  wheat  that  A.  has  in  B.'s  storehouse  and  give  him 
1  barrel  of  flour  at  my  mill  for  every  4  bushels  of  wheat.  X."  A.  delivered 
4.000  bushels  of  wheat  to  X.,  who  delivered  200  barrels  of  flour.  The  rest  of 
the  wheat  was  burned  without  X.'s  fault.  Held,  he  is  liable  for  failure  to 
deliver  the  other  barrels  of  flour.    Xorton  v.  Woodrufif,  2  N.  Y.  153  (1&49). 

X.  delivered  logs  to  A.  under  a  contract  whereby  A.  was  to  saw  them  into 
boards  and  have  half  the  boards.  A.  sawed  part  of  the  logs  and  appropriated 
to  his  own  use  both  the  boards  and  logs.  Held,  X.  may  maintain  trover  for 
Loth  boards  and  logs.     Pierce  v.  Schenck,  3  Hill  (X.  T.)"28  (1S42.) 


198       •  ACQUISITION  OF  OWNERSHIP  (Ch.  4 

The  plaintiffs  declared  upon  the  policy,  and  the  defendants  pleaded, 
that  the  plaintiffs  were  not  interested  in  the  stock,  and  also  that  in  their 
proposals  for  the  insurance  they  represented  that  tlie  stock  was  to  be 
insured  for  themselves,  whereas  it  was  held  by  the  plaintiffs  in  trust 
for  other  persons.  Issue  was  joined  on  the  pleas,  and  the  action  was 
tried  before  the  Chief  Justice  and  a  jury. 

Upon  the  trial  it  was  admitted  by  the  plaintiffs,  that  the  stock  which 
had  been  destroyed  by  the  fire  had  been  paid  for  by  the  defendants, 
except  such  portion  as  the  defendants  alleged  was  held  by  the  plain- 
tiffs in  trust  for  others;  and  the  question  was,  whether  such  portion, 
consisting  of  wheat,  was  held  by  the  plaintiffs  in  trust,  within  the 
meaning  of  the  above  condition,  and  was  therefore  not  covered  by  the 
policy. 

The  evidence,  so  far  as  it  was  material  to  this  question,  shewed  that 
according  to  the  plaintiffs'  custom  and  course  of  business  wheat  was 
received  by  them  from  farmers  to  whom  such  course  of  business  and 
dealing  was  known,  and  on  receipt,  shot  out  of  bags  in  the  presence 
of  the  farmers  who  brought  it  into  large  hutches,  where  it  became 
mixed  with  other  wheat  which  had  been  received  in  a  similar  man- 
ner, and  on  part  of  which  advances  had  been  made  to  the  farmers  by 
the  plaintiffs.  The  wheat  thus  mixed  lost  its  identity  and  became  the 
current  stock  of  the  plaintiffs,  which,  according  to  their  course  of  deal- 
ing, known  to  the  fanners,  was  either  sold  as  wheat  by  the  plaintiffs 
or  ground  in  their  mill.  The  plaintiffs  could  do  what  they  liked  with 
it.  If  ground,  the  flour  produced  from  such  stock  was  sold  and  oth- 
erwise dealt  with  by  the  plaintiffs  as  they  thought  fit,  and  as  their 
own  property.  It  never  was  intended  by  the  parties  that  the  identical 
wheat  delivered  by  the  farmers  should  be  returned  to  them.  On  de- 
livery of  the  wheat  to  the  plaintiffs  they  gave  to  the  farmer  a  receipt 
in  these  terms:  "Received,"  etc.,  "to  store,"  and  it  was  shot  to  be 
stored  or  taken  on  storage.  The  farmer  could  at  any  time  demand 
an  equal  quantity  of  wheat  of  like  quality  with  that  delivered  by  him 
to  the  plaintiff's,  or  the  market  price  of  an  equal  quantity,  fixing  the 
price  as  of  the  day  on  which  he  made  his  demand.  The  plaintiffs 
had  the  option  of  delivering  wheat  of  like  quality  or  paying  such  mar- 
ket price.  Advances  were  frequently  made  to  the  farmers  by  the  plain- 
tiffs in  respect  of  the  wheat  so  delivered  to  them.  No  charge  was 
made  by  the  plaintiffs  in  respect  of  the  wheat  until  after  the  lapse  of 
a  certain  time,  when  the  charge  was  one  farthing  per  bushel  per  month. 
The  wheat  in  question  had  been  brought  by  farmers  to  the  plaintiffs 
in  manner  aforesaid,  and  in  the  course  of  business,  and  had  been 
mixed  with  other  wheat,  and  treated  in  the  manner  aforesaid,  and  a 
portion  of  it  had  been  paid  for  by  the  plaintiffs.  No  evidence  was 
adduced  on  the  part  of  the  defendants,  but  their  counsel  applied  for 
a  nonsuit  on  the  ground  that  the  wheat  was  held  in  trust,  and  was  not 
the  property  of  the  plaintiffs. 


Sec.  4)  CONFUSION  199 

The  Chief  Justice  declined  to  nonsuit  the  plaintiffs,  and  by  consent 
the  verdict  was  entered  for  them  for  £698.,  including  interest,  with 
leave  to  the  defendants  to  move  to  enter  a  verdict  for  them  if  the 
court  should  be  of  opinion,  that  the  wheat  so  taken  on  storage  was 
held  in  trust  within  the  terms  of  the  conditions  in  the  policy. 

A  rule  nisi  was  granted  calling  on  the  plaintiffs  to  shew  cause  why 
the  verdict  for  the  plaintiffs  should  not  be  set  aside  and  a  verdict  en- 
tered for  the  defendants,  pursuant  to  leave  reserved,  upon  the  follow- 
ing grounds :  First,  that  the  goods  stored  had  not  been  assured  by  the 
plaintiffs ;  and  secondly,  that  the  wheat  taken  on  storage  was  held 
upon  trust  within  the  terms  of  the  conditions  of  the  policy. 

This  rule  came  on  to  be  argued  before  the  Chief  Justice  and  Mr. 
Justice  Gwynne,  when  the  Court  was  divided  in  opinion,  Mr.  Justice 
Gwynne  being  of  opinion,  that  the  property  in  the  wheat  when  deliv- 
ered was  vested  in  the  plaintiffs  beneficially,  as  their  own  property, 
and  was  not  property  held  in  trust ;  the  Chief  Justice  being  of  the  con- 
trary opinion,  and  Mr.  Justice  Wearing  being  precluded  from  taking 
part  in  the  judgment,  the  rule  was  discharged. 

From  this  judgment  the  present  appeal  was  brought. 

Their  Lordship's  judgment  was  pronounced  by 

Sir  Joseph  Napier. ^°  The  question  in  this  case  is,  whether  the 
wheat  that  was  taken  in  storage  by  the  respondents,  under  the  circum- 
stances stated  in  the  Chief  Justice's  notes  of  the  evidence  at  the  trial 
before  him,  is  to  be  considered  as  property  held  by  the  respondents  in 
trust,  or  whether  it  is  correctly  described  in  the  proposal  and  in  the 
policy  of  insurance  as  property  in  which  the  respondents  were  inter- 
ested for  themselves?  According  to  the  case  that*  was  cited  by  Mr. 
Thesiger  in  his  very  able  argument,  the  words  of  the  policy  as  to  prop- 
erty held  in  trust  ought  not  to  receive  a  technical  chancery  construc- 
tion (if  I  may  so  call  it) ;  but  the  substantial  question  is,  whether  the 
respondents  were  the  beneficial  owners  of  the  wheat  insured,  or  had 
merely  the  possession  as  bailees,  whilst  the  property  remained  in  the 
farmers  who  delivered  the  wheat,  so  long  at  least  as  it  was  not  actually 
appropriated  by  use  or  payment  on  the  part  of  the  respondents? 

Looking  to  the  evidence,  in  order  to  ascertain  the  conditions  upon 
which  this  wheat  was  delivered  and  taken  in  storage,  we  find  in  the 
evidence  of  Randell  fone  of  the  plaintiffs)  the  following  passage :  "At 
the  time  of  the  fire  the  whole  of  the  wheat,  excepting  a  few  bags — not 
more  than  twenty — was  in  bulk.  It  had  been  shot  out  of  bags  into 
large  hutches.  Have  been  a  miller  twelve  years.  The  wheat  was  ours 
to  do  what  we  thought  proper.  We  might  grind  or  sell ;  and  when 
any  one  came  who  had  brought  us  wheat,  we  had  to  pay  market  price 
of  equal  quality."  Again,  the  foreman  of  the  plaintiffs,  in  his  evi- 
dence, says:  "Farmer  brings  the  wheat,  and  he  can  sell  it  when  he 
pleases  to  the  miller.     Miller  can  do  what  he  likes  with  it,  grind  it  or 

3  9  Part  of  tbe  opinion  is  omitted. 


200  ACQUISITION   OF  OWNERSHIP  (Cll.  4 

sell  it.  All  wheat  when  brought  was  emptied  at  once  into  a  storing- 
place  in  presence  of  farmer  who  brought  it." 

The  evidence  of  the  only  farmer  who  was  examined  does  not  throw 
any  light  upon  the  question,  but  rather  obscures  it.  The  substance 
and  effect  of  all  the  evidence  that  bears  on  this  part  of  the  case  is 
♦his.  When  wheat  was  brought  by  the  farmer  to  the  miller,  he  deliv- 
ered it  to  the  miller  to  be  stored  with  his  current  stock  that  was  used 
for  the  known  purpose  of  his  trade.  It  was,  with  the  consent  of  the 
farmer,  put  into  storage  with  this  consumable  stock  of  the  miller ;  the 
farmer  got  a  storage  receipt  for  it,  and  might  afterwards  come  at  any 
time  he  thought  fit  to  claim  the  price  of  the  same  quantity  of  wheat 
of  equal  quality  according  to  the  market  price  of  the  day  on  which 
he  claimed  payment. 

The  evidence  is  somewhat  confused  and  inconsistent  on  the  surface 
in  one  or  two  places,  but  it  sufficiently  appears  that  the  fanner  had 
the  right  to  select  his  time  for  demanding  payment  for  the  wheat, 
which,  with  his  consent,  was  stored  at  the  time  of  delivery,  as  part 
of  the  current  consumable  stock  which  the  miller  might  grind  or  sell 
or  use  at  his  will  and  pleasure  for  his  own  profit. 

There  is  no  direct  evidence  that  the  farmer  had  the  option  of  claim- 
ing an  equal  quantity  of  wheat  of  the  like  quality,  instead  of  the  value 
in  money ;  and  from  the  very  nature  of  the  dealing  he  could  not  get 
back  the  identical  wheat  delivered,  as  it  was  mixed  in  the  common 
stock  with  his  consent. 

A  bailment  on  trust  implies,  that  there  is  reserved  to  the  bailor  the 
right  to  claim  a  redelivery  of  the  property  deposited  in  bailment.  No 
doubt  the  cases  that  are  referred  to  are  generally  cases  of  a  bailment 
without  a  question  of  mixture.  Mr.  Thesiger  in  his  argument  put  it  as 
if  there  was  some  distinction  in  the  case,  in  favour  of  the  appellants,  on 
account  of  the  mixture ;  but  the  facts  as  they  appear  on  the  evidence 
exclude  the  applicability  of  such  a  distinction.  Taking  the  view  of  it 
most  favourable  to  his  argument,  that  the  farmer  could  claim  as  of 
right  an  equal  quantity  of  the  like  quality,  this  must  be  without  ref- 
erence to  any  specific  bulk  from  which  it  should  be  taken,  for  the  stock 
with  which  he  consented  to  allow  his  wheat  to  be  mixed  might  all  have 
been  used  for  the  benefit  of  tlie  miller  before  the  claim  of  the  farmer 
would  be  put  forward. 

The  law  seems  to  be  concisely  and  accurately  stated  by  Sir  William 
Jones  in  the  passages  cited  by  Mr.  Mellish  from  his  treatise  ort-  Bail- 
ments, pp.  64  and  102  (3d  Ed.).  Wherever  there  is  a  delivery  of  prop- 
erty on  a  contract  for  an  equivalent  in  money  or  some  other  valuable 
commodity,  and  not  for  the  return  of  his  identical  subject-matter  in 
its  original  or  an  altered  form,  this  is  a  transfer  of  property  for  value — 
it  is  a  sale  and  not  a  bailment. 

Chancellor  Kent  in  his  Commentaries,  vol.  II,  §  589,  p.  781  (Uth 
Ed.),  where  he  refers  to  the  case  of  Seymour  v.  Brown,  of  which  he 


Sec.  4)  CONFUSION  201 

disapproves  in  common  with  Mr.  Justice  Story,  adopts  the  test,  wheth- 
er the  identical  subject-matter  was  to  be  restored  either  as  it  stood  or 
in  an  ahered  form  ;  or  whether  a  different  thing  was  to  be  given  for  it 
as  an  equivalent ;  for  in  the  latter  case  it  was  a  sale,  and  not  a  bailment. 
This  is  the  true  and  settled  doctrine  according  to  his  opinion.  Now, 
the  farmers  do  not  appear  on  the  evidence  to  have  contracted  for  more 
than  to  be  paid  for  an  equal  quantity  of  the  like  quality  of  wheat,  de- 
livered at  the  market  price  of  the  day,  on  which  a  settlement  should  be 
demanded.  Supposing  that  there  was  an  implied  option  to  claim  an 
equal  quantity  of  the  like  quality  at  any  time  after  deliver}^,  there  could 
be  no  right  of  claiming  an  aliquot  part  of  the  identical  bulk  with  which 
his  wheat  was  mixed  up  at  the  time  of  delivery,  for  this  was  consum- 
able at  the  will  and  pleasure  of  the  miller,  as  part  of  the  current  stock, 
hable  to  fluctuation,  from  time  to  time,  both  in  quantity  and  quality. 

Moreover,  it  appears  to  their  Lordships,  that  there  is  no  sound  dis- 
tinction, in  principle,  between  this  and  the  case  of  money  deposited 
with  a  banker  on  a  deposit  receipt.  It  may  have  been  deposited  in  ne- 
gotiable paper,  in  bank-notes,  or  in  sovereigns,  but  it  is  paid  in  upon 
the  known  course  and  conditions  of  the  banker's  dealings.  A  man  is 
supposed  to  intend  the  natural  consequence  of  his  acts.  He  knows  the 
course  of  dealing,  he  hands  in  the  money ;  he  gets  a  deposit  receipt : 
he  knows  that  the  money  is  taken  by  the  banker  to  be  dealt  with  as  part 
of  his  current  capital,  to  be  used  as  his  own  for  his  own  purposes. 
By  the  deposit,  it  is  placed  in  the  disposing  power  of  the  banker ;  and 
surely  he  who  has  acquired  the  disposing  pKDwer  over  property  for  his 
own  benefit,  without  the  control  of  another,  has  the  beneficial  owner- 
ship. 

In  the  banker's  case  in  the  House  of  Lords,  the  case  of  Foley  v.  Hill, 
2  H.  L.  C.  28,  the  question  w^as  fully  discussed,  whether  a  banker,  un- 
der such  circumstances,  could  be  considered  and  dealt  with  as  a  trus- 
tee :  Lord  Cottenham  says,  at  page  36 :  "Money,  when  paid  into  a 
bank,  ceases  altogether  to  be  the  money  of  the  principal.  See  Parker 
V.  Marchant,  2  Phillips,  360.  It  is  then  the  money  of  the  banker,  who 
is  bound  to  return  an  equivalent  by  paying  a  similar  sum  to  that  de- 
posited with  him,  when  he  is  asked  for  it.  The  money  paid  in  to  the 
banker's  is  money  known  by  the  principal  to  be  placed  there  for  the 
purpose  of  being  under  the  control  of  the  banker;  it  is  then  the  bank- 
er's money;  he  is  known  to  deal  with  it  as  his  own;  he  makes  what 
profit  of  it  he  can,  which  profit  he  retains  to  himself,  paying  back  only 
the  principal,  according  to  the  custom  of  bankers  in  some  places,  or  the 
principal  and  a  small  rate  of  interest,  according  to  the  custom  of 
bankers  in  other  places.  The  money  placed  in  the  custody  of  a  banker 
is,  to  all  intents  and  purposes,  the  money  of  the  banker,  to  do  with  it 
as  he  pleases;  he  is  guilty  of  no  breach  of  trust  in  employing  it;  he  is 
not  answerable  to  the  principal  if  he  puts  it  in  jeopardy,  if  he  engages 
in  a  hazardous  speculation ;  he  is  not  bound  to  keep  it,  or  deal  with  it 


202  ACQUISITION   OF   OWNERSHIP  (Cll.  4 

as  the  property  of  his  principal,  but  he  is,  of  course,  answerable  for  the 
amount,  because  he  has  contracted,  having  received  that  money,  to  re- 
pay to  the  principal,  when  demanded,  a  sum  equivalent  to  that  paid  into 
his  hands." 

An  indelible  incident  of  trust  property  is  that  a  trustee  can  never 
make  use  of  it  for  his  own  benefit.  An  incident  of  property,  that  is  in 
bailment,  is  that  the  bailor  may  require  its  restoration.  This  right  of 
recalling  the  deposit  is  relied  on  by  Lord  Cottenham  (p.  39),  as  a  test 
to  try  the  principle  on  which  the  fiduciary  relation  was  sought  to  be 
maintained.  But  in  this  case,  no  right  seems  to  exist  on  the  part  of 
the  depositor  to  get  back  either  his  identical  wheat,  or  a  share  of  the 
specific  bulk  in  which  his  wheat  was  mixed  with  his  consent ;  there  is 
no  such  right  on  the  one  side,  while,  on  the  other,  there  is  the  power 
in  the  miller  of  doing  what  he  liked  with  the  wheat  after  it  became  part 
of  his  current  stock.  This  is  an  inverted  order  of  right  that  is  wholly 
inconsistent  with  the  relation  of  trustee  and  cestui  que  trust  that  is  con- 
tended for  in  this  case.     *     *     * 

As  to  the  charge  for  storage,  it  is  to  be  observed,  that  it  is  not  the 
storage  of  the  wheat  that  was  actually  delivered,  or  of  an  equal  quan- 
tity of  the  specific  stock  with  which  it  was  mixed  up  at  the  time  of  de- 
livery, but  storage  for  an  equal  quantity  which  is  assumed  to  have  been 
kept  in  the  current  stock  of  the  mill.  It  seems  to  be  an  equitable  term 
of  the  final  settlement,  in  which  the  farmer  has  the  benefit  of  selecting 
the  time  that  is  most  advantageous  for  himself  to  claim  payment  at  the 
market  price  of  the  day  for  the  same  quantity  of  like  quality  of  wheat 
that  he  delivered. 

The  charge  of  deduction  for  storage  of  so  much  in  quantity  as  was 
delivered  may  be  set  off  against  the  farmer's  privilege  of  selecting  his 
own  time  for  payment  at  the  market  rate  of  the  day.  This  is  the 
more  reasonable  if  there  was  an  option  on  the  part  of  the  miller  to  give 
the  farmer  a  like  quantity  of  a  like  quality,  because  he  might  then  be 
supposed  to  have  kept  a  quantity  in  storage  for  the  purpose  of  having 
it  in  his  power  to  exercise  this  option;  or  if  the  farmer  had  a  corre- 
sponding option  of  claiming  an  equal  quantity  of  like  quality,  instead 
of  the  money  value.  But,  however  this  may  be,  it  does  not  vary  the 
general  nature  of  the  case  any  more  than  where  deposits  are  made  with 
a  banker  for  a  given  time,  and  he  allows  a  small  rate  of  interest  on  the 
money. 

Putting  the  insurance  out  of  view,  let  us  see  on  whom  would  the  loss 
fall  of  the  stored  wheat  destroyed  by  this  fire.  Would  it  be  any  answer 
for  the  miller  to  say  to  the  farmer  when  he  came  to  claim  the  price  of 
the  wheat  according  to  contract :  "All  this  wheat  has  been  destroyed 
by  a  fire?"  The  farmer  might  well  reply:  "It  was  delivered  to  you, 
and  at  once  put  into  your  current  stock,  to  be  used  as  you  saw  fit  for 
your  own  use  and  benefit.  You  acquired  complete  dominion  over  it, 
and  you  must,  therefore,  bear  the  loss."    It  is  not  upwn  the  exercise  of 


Sec.  4)  CONFUSION  203 

a  dominion  not  subject  to  control,  but  upon  having  such  dominion,  that 
beneficial  ownership  depends.  The  party  who  has  acquired  such  do- 
minion over  property  is  not  bound  to  exercise  it  in  any  particular  way 
or  at  any  particular  time,  but  the  having  the  power  to  use  property  as 
his  own  for  his  own  purposes  is  wholly  irreconcilable  with  the  notion 
of  his  being  a  trustee  of  the  property,  holding  it  for  the  benefit  of  his 
cestui  que  trust.     *     *     * 

Therefore,  it  appears  to  their  Lordships,  that  the  description  in  the 
proposal  and  in  the  policy  is  a  correct  and  honest  description  of  the 
subject  of  the  insurance.  As  the  question  reserved  at  the  trial,  was, 
whether  the  wheat  taken  in  storage  should  be  considered  as  trust  prop- 
erty, within  the  terms  of  the  conditions  of  the  policy,  and  as  their 
Lordships  think,  that  it  should  not  be  so  considered,  they  will  humbly 
advise  Her  Majesty  that  the  order  of  the  Court  below,  discharging  the 
rule  nisi  to  set  aside  the  verdict,  ought  to  be  affirmed  and  the  appeal 
dismissed  with  costs. 


SEXTON  &  ABBOTT  v.  GRAHAM  et  al. 

(Supreme  Court  of  Iowa,  1880.     53  Iowa,  181,  4  N.  W.  1090.) 

Action  in  equity  to  determine  the  respective  rights  of  plaintiffs  and 
others  as  warehouse  receipt  holders  in  a  common  mass  of  grain.  The 
defendant  James  R.  Graham  was  for  many  years  a  dealer  in  grain  at 
Davenport,  Iowa.  He  received  grain  belonging  to  other  parties  on 
storage,  and  bought  and  sold  on  his  own  account,  and  in  the  course 
of  his  business  he  issued  from  time  to  time  a  large  number  of  ware- 
house receipts.  He  transacted  his  business  at  a  building  called  Bazar 
Block,  in  which  there  was  an  elevator  which  was  used  for  the  purpose 
of  receiving  grain,  and  distributing  it  in  the  various  apartments  of 
the  building.  On  the  20th  day  of  October,  1875,  the  said  Graham,  be- 
ing largely  in  debt,  absconded,  leaving  his  warehouse  or  grain  eleva- 
tor in  charge  of  his  son,  who  had  been  for  some  time  before  that  his 
clerk  and  book-keeper.  There  were  then  in  the  warehouse  nearly  7,- 
000  bushels  of  oats,  and  about  8,900  bushels  of  wheat.  There  were 
outstanding  warehouse  receipts  for  more  than  60,000  bushels  of  wheat, 
and  for  38,000  bushels  of  oats,  which  receipts  had  been  issued  to  the 
several  parties  hereto.  The  plaintiffs.  Sexton  &  Abbott,  held  a  wheat 
receipt  for  13,000  bushels  which  was  in  these  words : 

"No.  33.  Elevator,  Davenport,  April  1,  1875. 

"Received  in  store  from  Sexton  &  Abbott  thirteen  thousand  bushels 
of  wheat,  subject  only  to  the  order  hereon  of  Sexton  and  Abbott,  and 
the  surrender  of  this  receipt  and  the  payment  of  charges. 

"It  is  hereby  agreed  by  the  holders  of  this  receipt  that  the  grain 
herein  mentioned  may  be  stored  witli  other  grain  received  about  the 


204  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

date  hereof,  of  the  same  quality  by  inspection.    Loss  by  fire  or  heat- 
ing at  owner's  risk. 
"13,000  bush.  James  R.  Graham,  per  F.  Graham." 

[The  defendant,  the  Davenport  National  Bank  also  held  wheat  re- 
ceipts amounting  in  the  aggregate  to  28,000  bushels,  which  had  been 
issued  by  Graham  to  the  bank  as  collateral  security  for  loans  made 
by  the  bank  to  him  at  various  times.  At  the  time  of  Graham's  failure 
he  was  indebted  to  the  bank  in  the  sum  of  $20,000  and  the  bank  had 
no  security  but  the  receipts. 

No  relief  was  given  to  the  bank  by  the  court  below  and  the  bank 
appealed.] 

Adams,  C.  J.''"  *  *  *  The  appellant  claims  that,  while  Sexton 
&  Abbott  may  at  one  time  have  owned  the  grain  described  in  their 
receipts,  they  sold  the  same  to  Graham  at  the  time  of  the  issuance  of 
the  receipts,  or,  if  not,  that  their  title  to  the  grain  became  extinguished 
by  reason  of  what  afterwards  transpired.     *     *     * 

Where  a  warehouseman  merely  receives  grain  from  several  depos- 
itors, with  the  understanding  that  it  may  be  mixed  in  a  common  mass, 
and  it  is  so  mi.xed,  the  transaction  is  a  bailment,  and  the  depositors 
are  tenants  in  common.  Gushing  v.  Breed,  14  Allen  (Mass.)  3(S0, 
92  Am.  Dec.  777 .  But  it  is  said  that  where  the  warehouseman  is  him- 
self a  depositor,  and  it  is  understood  by  the  other  depositors  that  their 
grain  is  to  be  mixed  with  his,  with  the  right,  on  his  part,  to  draw  from 
the  mass  to  the  amount  of  his  deposit,  then  the  depositors  do  not  be- 
come tenants  in  common,  but  the  title  to  all  the  grain  passes  at  once, 
upon  deposit,  to  the  warehouseman.  *  *  *  It  is  claimed  by  appel- 
lant, and  we  think  the  evidence  so  shows,  that  at  the  time  of  the  trans- 
action in  question  Graham  was  depositing,  upon  his  own  account, 
grain  in  his  warehouse  or  elevator  in  common  mass,  and  shipping  there- 
from, and  that  the  plaintiffs  knew  it.  We  have  then  the  question 
whether,  such  being  the  fact,  the  title  to  plaintiff's  grain  under  their 
receipts  passed  to  Graham.     *     *     * 

It  is  a  common  thing,  we  believe,  for  proprietors  of  elevators  to 
employ  them  for  the  deposit  of  their  own  grain,  if  they  have  any,  in 
common  mass  with  others'  grain.  Depositors,  we  think,  generally 
know  this,  and  consent  that  their  grain  may  be  mixed  not  only  with 
grain  belonging  to  third  persons,  but  with  grain  belonging  to  the  pro- 
prietor, if  he  should  have  any.  This  mode  of  doing  business  seems 
to  be  demanded  by  considerations  of  economy.  Now  we  are  asked 
to  hold  that  such  depositors  lose  title  to  their  grain  immediately  upon 
its  being  deposited,  and  that  the  receipts  issued  to  them,  though  ex- 
pressly calling  for  grain,  are  no  evidence  of  a  claim  for  grain,  but 
at  best  are  merely  evidence  of  a  claim  for  money,  and  are  good  or 

■»o  Part  of  the  opinion  of  Adams,  C.  J.,  and  the  dissenting  opinion  of  Kotli- 
rocli,  J.,  are  omitted. 


Sec.  4)  CONFUSION  205 

otherwise,  according  as  the  maker  is  or  is  not  responsible.  It  is  con- 
tended that  such  deposits  of  grain  are  Hke  general  bank  deposits  of 
money.  In  our  opinion,  however,  there  is  a  very  important  difference. 
In  case  of  a  general  bank  deposit  it  is  understood  that  the  bank  will 
use  it  in  its  own  way.  It  is  from  the  use  of  deposits  that  the  bank  is 
to  receive  its  compensation  for  receiving  the  deposits  and  accounting 
for  the  same.  It  is  true  that  as  grain  has  a  definite  and  well  recog- 
nized market  value  it  would  not,  ordinarily,  make  much  difference  to 
the  receipt  holder  whether  he  received  the  grain  which  his  receipt 
called  for,  or  was  paid  its  market  value  in  cash.  But  the  rule  con- 
tended for  would  make  a  great  dift'erence  in  the  safety  of  the  receipt 
holder.  In  our  opinion  it  cannot  be  sustained  either  upon  principle 
or  authority.  *  *  *  Such  an  understanding  does  not  exist  upon 
the  part  of  grain  receipt  holders  by  reason  of  a  mere  agreement  that 
the  warehouseman  may  mix  his  own  grain  with  theirs  and  draw  out 
and  sell  the  same  amount.  In  such  case  the  warehouseman  becomes 
a  tenant  in  common  like  any  other  depositor,  and  may  be  permitted 
to  enjoy  the  same  right  of  severance  without  affecting  the  title  of  his 
co-tenants. 

Again,  upon  looking  into  the  plaintiffs'  receipts,  we  find  that  thev 
are  something  more  than  mere  receipts.  They  contain  what  appears 
to  us  to  be  an  express  contract  of  bailment.     *     *     * 

The  transaction,  then,  being  a  bailment  in  the  outset,  we  come  to 
inquire  whether  the  relation  of  the  parties  became  changed  by  reason 
of  what  afterwards  transpired.  The  appellant,  contends  that  it  did. 
It  is  insisted  that  the  evidence  shews  that  the  grain  in  controversy,  is 
entirely  different  grain  from  that  in  store  when  the  plaintiff's  receipts 
were  issued. 

The  business  which  Graham  was  doing  was  an  ordinary  grain  ware- 
house or  elevator  business.  Grain  received  from  different  depositors 
was  put  in  at  the  top  of  the  elevator  and  delivered  to  them  at  the  bot- 
tom. Grain  of  like  kind  and  grade  was  mi.xed  in  a  common  mass.  De- 
livery was  made  to  each  depositor  without  the  slightest  reference  to 
identity  of  grain  deposited.  It  was  not  only  useless  but  impracticable 
to  respect  the  identity  of  the  deposit.  *  *  *  The  process  may  be 
continued  from  day  to  day,  and  so  long  as  the  change  of  mass  is  a 
partial  one,  though  approximating  day  by  day  to  completeness,  the 
value  of  the  outstanding  receipts  remains  unchanged.  Possibly  it 
would  be  admitted  by  appellant  that  the  value  of  a  receipt  would  re- 
main unchanged  when  next  to  the  last  kernel  originally  covered  by 
it  was  withdrawn.  Pos.-sibly  somewhat  more  than  that  amount  might 
be  deemed  necessary  to  uphold  the  receipt.  But  according  to  the  ap- 
pellant's theory,  as  we  understand  it,  whatever  the  amount  may  be, 
whether  one  kernel  or  one  bushel,  its  withdrawal,  although  in  the  ordi- 
nary and  necessary  conduct  of  business,  renders  the  receipt  worth- 
less as  evidence  of  a  claim  to  grain,  and  what  a  moment  before  was 


206  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

a  valid  title  in  the  receipt-holder,  to  all  tlic  grain  called  for  by  his  re- 
ceipt becomes  transferred  from  the  receii)t-holder  to  the  warehouse- 
man, and  that;  too,  in  the  absence  of  any  agreement  or  understanding 
of  that  kind  between  the  parties.  It  will  be  seen  at  once  that  the  rule 
contended  would  result  in  the  most  painful  uncertainty  and  intermina- 
ble confusion.  No  receipt-holder  who  had  held  his  receipt  even  for 
a  short  time  during  a  period  of  active  business  would  know,  or  could 
possibly  ascertain,  what  his  rights  are.  This  result,  so  undesirable  in 
every  respect,  is  reached  by  appellant  upon  the  purely  technical  view 
that  unless  a  portion  of  the  original  grain,  at  least  a  kernel  or  two, 
remains,  the  receipt  must,  in  the  nature  of  things,  fail.  In  our  opin- 
ion, a  complete  answer  is  that  as  the  receipt  attaches  upon  each  new 
deposit  the  receipt-holder  becomes  and  remains  a  tenant  in  common 
at  all  times  of  the  mass  which  is  being  added  to  and  subtracted  from. 

At  this  point  a  question  arises  as  to  what  is  to  be  deemed  a  com- 
mon mass.  *  *  *  When  grain  is  deposited  in  an  elevator  with 
the  understanding  that  it  may  be  mixed  with  all  grain  of  that  kind 
and  grade  in  the  elevator,  and  the  grain  of  that  kind  and  grade  is 
distributed  upon  different  floors  or  in  different  compartments  merely 
because  the  weight  of  the  grain,  or  prevention  from  heating,  or  con- 
venience in  handling,  or  some  other  reason  of  that  kind  requires  it, 
and  not  at  all  for  the  preservation  of  identity,  all  the  grain  of  that 
kind  and  grade  is  to  be  deemed  a  common  mass  within  the  view  of 
thfe  law  as  applicable  to  such  a  case.  This  must  be  so,  because  the 
grain  is  practically  treated  as  a  common  mass.  When  grain  passes 
into  the  elevator  with  the  understanding  that  it  may  be  mixed  with 
other  grain  of  the  same  kind  and  grade  it  passes  beyond  the  control 
of  the  depositor,  so  far  as  identity  is  concerned.  What  the  parties 
have  agreed  to  treat  as  a  common  mass,  is  such  for  the  purpose  of 
determining  the  rights  of  the  parties.  We  think,  then,  that  a  depositor 
becomes  a  tenant  in  common  of  all  the  grain  in  the  elevator  with 
which  his  grain  may  properly  be  mixed,  and  he  may  demand  the  sat- 
isfaction of  his  receipt  out  of  any  or  all  such  grain.  Of  course  if 
grain  is  wrongfully  abstracted  there  would  not  be  enough  to  meet  all 
the  receipts.    In  such  case  the  loss  should  be  borne  pro  rata. 

In  this  case  grain  was  wrongfully  abstracted.  Graham  after  ex- 
hausting his  own  deposits  drew  largely  in  excess.  The  amount  wrong- 
fully taken  by  him  exceeded  the  amount  left  on  hand  when  he  ab- 
sconded. It  is  contended  by  the  appellant  that  the  amount  thus  left 
belonged  to  Graham.  The  appellant's  theory  is,  as  we  understand  it, 
that  the  amount  on  hand  must  be  solely  the  result  of  Graham's  de- 
posits. The  assumption  that  this  grain  belonged  to  Graham  at  the 
time  he  absconded  involves  the  assumption  that  when  grain  was  wrong- 
fully abstracted  by  Graham,  and  afterwards  a  deposit  was  made  by 
him,  the  law  would  not,  in  the  absence  of  an  agreement  to  that  ef- 


Sec.  4)  CONFUSION  207 

feet,  apply  the  subsequent  deposit  toward  making  good  the  previous 
wrongful  abstraction. 

Whether,  if  Graham's  deposits  had  all  been  made  subsequent  to 
his  wrongful  taking,  he  could  in  a  controversy  between  the  receipt- 
holders  and  himself,  in  respect  to  the  grain  left  on  hand,  be  heard  to 
say  that  they  had  no  interest  in  it,  because  he  had  before  the  deposit 
of  this  grain  wrongfully  taken  all  their  grain,  is  a  question  perhaps 
not  fully  settled  by  adjudication.  As  tending  to  support  the  rule 
that  he  would  be  estopped  in  such  case,  see  Gardiner  v.  Suydam,  7 
N.  Y.  363.  But  we  need  not  go  into  this  question.  There  is  nothing 
to  show  that  Graham's  wrongful  shipments  were  all  made  prior  to 
his  deposits.  To  the  extent  of  his  deposits  at  the  time  of  his  ship- 
ments they  were  not  wrongful.  And  his  shipments  altogether  never 
equalled  the  amount  of  his  deposits,  and  the  amount  called  for  by  the 
outstanding  receipts.  They  lacked  precisely  the  amount  left  on  hand. 
That,  we  think,  must  be  deemed  to  belong  to  the  receipt-holders. 

[The  court  held  that  since  the  receipts  to  the  bank  were  not  issued 
for  grain  owned  by  the  bank  but  only  by  way  of  collateral  security 
they  were  invalid  under  Sec.  2172  of  the  Iowa  Code  that  no  ware- 
houseman should  issue  receipts  for  personal  property  unless  such 
property  was  in  store.] 

The  judgment  of  the  circuit  court  must  be  affirmed.*^ 

RoTHROCK,  J.,  dissenting. 


JAMES  &  NEER  v.  PLANK. 

(Supreme  Court  of  Ohio,  1891.    48  Ohio  St.  255,  26  N.  E.  1107.) 

Spear,  J.*^  The  question  is:  did  the  court  of  common  pleas  etr 
in  directing  a  verdict  for  the  plaintiff  below?  'If,  as  was  assumed  by 
that  court,  the  undisputed  evidence  established  that  the  transaction  was 
a  sale,  then  the  direction  was  right,  but  if  the  whole  evidence  left 

^1  A.,  B.  and  C.  each  deposited  grain  with  X.  a  warehouseman  which  was 
mixed  in  a  common  mass  with  X.'s  grain.  X.  drew  off  more  than  his  propor- 
tion and  became  insolvent.  A.  drew  off  the  full  amount  called  for  by  his 
receipt.  Held,  A.  is  liable  to  account  to  B.  and  C.  for  the  excess  drawn  off 
by  him  above  his  proportionate  part  of  the  diminished  supply.  Brown  v. 
Northcutt,  14  Or.  529,  13  Pac.  485  (1SS7). 

On  the  above  facts  A.,  B.  and  C.  may  recover  from  X.'s  vendee  the  amount 
sold  by  X.  in  excess  of  his  proportionate  interest  in  the  grain.  Hall  v.  Pills- 
bury,  43  Minn.  33,  44  N.  W.  673,  7  L.  K.  A.  529,  19  Am.  St.  Rep.  209  (1S90) ; 
Young  y.  Miles,  23  Wis.  643  (18C9).  Compare  Preston  v.  Witherspoon,  109  Ind. 
457,  9  N.  E.  585.  58  Am.  Rep.  417  (1886). 

X.  had  two  adjacent  granaries.  A.  deposited  wheat  with  him,  which  he 
stored  in  mass  in  the  south  granary.  X.  subsequently  converted  all  the  wheat 
in  the  south  granary,  and  then  became  insolvent  and  made  an  assignment  to 
Y.,  who  sold  all  the  grain  in  the  north  granary.  Held,  A.  has  no  claim  be- 
cause of  the  sale  of  the  grain  in  the  north  granary.  Adams  v.  Meyers,  1 
Sawyer,  306,  Fed.  Cas.  No.  62  (1870). 

*'  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


208  ACQUISITION  OF   OWNERSHIP  (Ch.  4 

a  fair  question  as  to  whether  it  was  a  sale  or  a  bailment,  then  the  ques- 
tion should  have  been  submitted  to  the  jury. 

It  was  shown  by  the  evidence,  that  the  wheat  was  delivered  by  an 
employee  of  the  plaintiff,  at  the  warehouse  of  the  defendants,  on  the 
17th  and  18th  days  of  August,  1886,  and  received  by  a  clerk  or 
foreman  employed  at  the  warehouse,  who,  as  the  loads  came,  issued 
receipts,  in  substance  like  the  following : 

"No.  1721.  De  Graff,  O.,  August  17,  1886. 

James  &  Neer. 
"Received  of  J.  C.  Plank  (Administrator)  load  of  wheat,  11  bushels, 
5  pounds. 

"Not  transferable.    Present  this  at  office. 

"J.  H.McKinnie,  Weigher." 

The  wheat,  when  deposited,  was  mixed  with  other  like  wheat  in 
the  warehouse,  some  belonging  to  the  defendants  and  some  to  others 
for  whom  it  had  been  received  in  store. 

On  the  26th  day  of  August,  1886,  a  fire  occurred  which  consumed 
the  warehouse  and  nearly  all  the  wheat  there  at  the  time.  The  fire 
was  without  fault  on  the  part  of  the  defendants.  At  that  time  none 
of  the  receipts  had  been  presented  at  the  office.  Shortly  after  the  fire 
Plank  demanded  of  James  &  Neer  pay  for  all  the  wheat  delivered, 
which  was  refused.  They  however,  tendered  $36.16,  as  his  share  of 
damaged  wheat  which  had  been  sold  after  the  fire. 

Within  the  previous  year  Plank  had  delivered  to  the  defendants  at 
the  same  warehouse  from  eleven  to  twelve  hundred  bushels  of  wheat, 
for  which  he  took  the  weigher's  receipts  in  form  similar  to  the  copy 
given,  which  he  subsequently  presented  at  the  office  and  received  in 
exchange  storage  receipts,  a  copy  of  one  of  which  is  as  follows: 

"James  &  Neer,   Dealers  in  Grain  &  Seeds. 
"No.  240.  De  Graff,  O.,  January  5,  1886. 

"Received  of  Joseph  C.  Plank,  four  hundred  and  fifty-two  bushels 
and  35  pounds  of  wheat  (452  35-100  bushels).  Subject  to  the  fol- 
lowing rules : 

"Storage  free  until  June  1,  1886.  One  cent  per  bushel  per  month  or 
any  part  thereafter.  All  grains  stored  at  owner's  risk.  We  will  not 
be  responsible  for  loss  or  damage  in  any  way.  Grain  taken  out  of 
house  by  owners,  five  cents  per  bushel  and  usual  storage. 

"James  &  Neer." 

This  wheat  was  subsequently  sold  to  the  defendants. 

The  evidence  further  tended  to  show  that  James  &  Neer  were  at 
the  time,  and  had  been  for  several  years,  engaged  in  storing  wheat  as 
warehouseman,  as  well  as  in  buying  and  selling;  that  they  sold  and 
withdrew  from  the  common  mass,  but  never  so  much  but  that  there 


Sec.  4)  CONFUSION  209 

was  left  sufficient  to  return  to  each  depositor  his  proper  quantity;  and 
that,  when  the  fire  occurred,  they  had  in  the  warehouse  between  200 
and  300  bushels  of  wheat  in  excess  of  the  quantity  necessary  to  satis- 
fy all  depositors,  including  Plank. 

The  evidence  further  tended  to  show  the  existence  of  a  custom  of 
dealing  in  vogue  for  many  years  at  that  and  other  warehouses  in  the 
neighborhood,  of  which  Plank  had  knowledge,  to  the  effect  that  grain 
deposited  in  the  warehouse,  for  which  weigher's  receipts  were  given, 
was  regarded  as  grain  in  store  until  such  receipts  were  presented  at  the 
office,  when  the  owner  had  the  option  to  exchange  the  weigher's  re- 
ceipts for  a  storage  receipt  and  continue  the  storage  upon  the  terms 
specified  in  that  form  of  receipt,  or  to  sell  at  the  price  ruling  the  day 
such  weigher's  receipts  were  presented ;  and  that  the  receiving  of 
the  wheat  and  the  giving  of  the  weigher's  receipts  did  not  constitute  a 
sale  of  the  wheat,  but  that  it  remained  the  property  of  the  depositor  un- 
til the  weigher's  receipts  were  presented  at  the  office  and  an  election 
to  sell  made. 

Let  us  examine  and  ascertain  the  effect  of  this  evidence  in  order 
to  determine  the  duty  of  the  trial  court  with  respect  to  it.  The  naked 
fact  of  the  delivery  of  the  wheat  and  the  terms  of  the  weigher's  re- 
ceipts are  consistent  with  either  a  sale  or  a  bailment.  It  being  shown 
further,  however,  by  plaintiffs'  evidence  that  James  &  Neer  were  buy- 
ers and  sellers  only  of  grain,  it  might  well  be  claimicd  that  the  delivery 
and  the  receipts  imported  a  sale.  But  the  added  character  of  ware- 
housemen presented  a  new  question.  This  question  would  have  been 
removed,  and  the  plaintiff's  claim  again  sustained,  had  it  appeared  that 
James  &  Neer  appropriated  the  grain  to  their  own  use  by  shipping, 
so  as  not  to  leave  a  quantity  sufficient  to  satisfy  depositors,  for,  in 
such  case,  it  might  fairly  be  presumed  that  the  owner  and  receiptor 
had  agreed  upon  a  sale  to  the  latter.  Besides,  while  the  mere  option  to 
elect  to  treat  a  bailment  as  a  sale  at  some  future  time  does  not  deprive 
it  of  its  character  of  a  bailment  (Colton  v.  Wise,  7  111.  App.  395 ;  Plow 
Co.  V.  Porter,  82  Mo.  23;  Ledyard  v.  Hibbard,  48  Mich.  421,  12  N. 
W.  637,  42  Am.  Rep.  474),  yet,  where  the  depositary  appropriates 
to  his  own  use  more  than  his  proportion  of  the  common  mass  the 
depositor  may  elect  to  treat  the  transaction  as  a  sale,  and  demand 
pay  for  the  wheat  delivered.  So  that  if  at  all  times  James  &  Neer  left 
enough  to  return  to  each  depositor,  including  Plank,  his  proper  quan- 
tity, the  depositors  remained  tenants  in  common  of  the  mixed  mass, 
each  erititled  to  such  proportion  as  the  quantity  placed  there  by  him 
bore  to  the  whole  mass,  and  Plank,  if  a  depositor  originally,  would 
remain  such,  because  the  mere  fact  that  the  warehouseman  mi.xed  the 
wheat  of  all  of  like  quality  in  one  common  mass  and  shipped  and  sold, 
from  time  to  time,  from  the  mass,  their  proportion  only,  would  not 
work  a  change  in  the  ownership  of  the  wheat,  and  it  would  follow  that 
Big.Peks.Pkop. — 14 


210  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

the  fact  of  mingling  and  of  such  shipping  and  sale  would  not  determine 
that  the  transaction  was  a  sale,  rather  than  a  bailment.     *     *     * 

The  trial  court  assumed,  that,  upon  the  undisputed  facts,  a  sale  was 
conclusively  shown,  and  that  a  question  of  law  only  remained.  In  this, 
we  think,  the  court  erred.  Upon  the  whole  evidence  intelligent  minds 
might  reach  a  different  conclusion,  and  wherever  that  state  of  the 
evidence  exists  it  presents  a  case  for  the  jury,  under  proper  instruc- 
tions. If  the  jury  should  find,  from  the  evidence,  that  the  understand- 
ing between  the  parties  was  that  James  &  Neer  were  to  mingle  the 
wheat  received  of  Plank  with  other  wheat  and  sell  and  ship  at  their 
pleasure,  and  that  the  direction  in  the  weigher's  receipts  to  "present 
this  at  office,"  was  for  the  purpose  only  of  indicating  to  the  holder 
where  he  could  get  his  pay,  or,  if  the  understanding  was  that  they 
were  to  mingle  the  wheat  with  other  wheat  of  like  kind  and  sell  only 
their  own  proportion,  keeping  enough  for  all  depositors,  and  yet,  in 
disregard  of  this,  they  actually  did  sell  at  their  pleasure,  not  leaving 
enough  on  hand  for  depositors,  then  the  verdict  for  the  plaintiff,  as 
rendered,  would  have  been  justified.  But  if,  on  the  other  hand,  the 
jury  should  be  satisfied  from  the  evidence  that  the  custom  as  claimed 
by  defendant,  actually  existed,  was  known  to  plaintiff,  and  from  it  and 
other  facts  appearing,  that  the  understanding  was  that  though  the 
wheat  might  be  mingled  with  other  wheat  belonging  in  part  to  deposi- 
tors and  in  part  to  defendants,  yet  that  defendants  were  to  sell  from 
the  common  mass  from  time  to  time,  their  proportion  only,  leaving 
sufficient  on  hand  to  satisfy  all  depositors  and  the  defendants  observed 
this  understanding;  and  especially  if,  in  addition  to  the  foregoing,  they 
found  further  that  the  distinct  understanding  of  the  parties  was,  by 
virtue  of  said  custom,  that  the  wheat  was  to  be  regarded  as  in  store 
until  Plank  should  elect  to  make  a  sale  of  it,  then,  it  appearing  that 
no  demand  for  the  pay  had  been  made  by  presentation  of  receipts  at 
the  office,  or  otherwise,  before  the  fire,  the  jury  would  have  been  jus- 
tified in  finding  for  the  defendants.     *     *     * 

Judgment  reversed.*^ 

43  Grain  was  delivered  to  a  warehouseman,  stored  In  a  common  mass  and 
the  following  receipt  given:  "Received  of  A.  SOO  bushels  of  wheat  at  owner's 
risk  from  elements  at  10  cents  less  Detroit  quotations  when  sold  to  us.  Stored 
for  days.     X."     Held  a   bailment,  with   an  option  on  the  part  of  the 

depositor  to  convert  it  into  a  sale.  Ledyard  v.  Hibbard,  48  Mich.  421,  12  N. 
W.  637,  42  Am.  Rep.  474  (1SS2). 

A.,  with  others,  delivered  milk  to  X.,  who  mixed  it,  and  made  from  It  but- 
ter, which  he  sold.  He  credited  the  proceeds  proportionately  to  the  persons 
who  supplied  the  milk,  less  a  charge  of  two  cents  a  pound.  Held,  A.  and  the 
others  were  the  owners  of  the  butter.  First  Nat.  Bank  of  Elgin  v.  Schweeu. 
127  111.  573,  20  N.  E.  681,  11  Am.  St  Rep.  174  (1889).  Compare  Butterfleld  v. 
Lathrop,  71  Pa.  225  (1872). 


Sec.  4)  CONFUSION  211 

PICKERING  V.  MOORE. 

(Supreme  Court  of  New  Hampshire,  1893.    67  N.  H.  533,  32  Atl.  828,  31  L.  R. 
A.  G9S,  68  Am.  St.  Rep.  693.) 

Trover,  for  manure.  Facts  found  by  the  court.  March  31,  1883,  the 
defendant  leased  his  farm  for  the  term  of  three  years  to  tlie  plaintiff, 
who  covenanted  to  carry  on  the  place  in  a  "husband-like  manner,"  and 
to  consume  and  convert  into  manure,  to  be  used  or  left  upon  the  prem- 
ises, all  hay  and  fodder  raised  thereon.  The  plaintiff  occupied  the 
farm  and  performed  all  his  covenants  contained  in  the  lease,  without 
any  new  or  further  contract,  until  May  30,  1892.  During  the  last  year 
of  his  occupancy  he  fed  out  upon  the  farm  a  large  quantity  of  fodder 
not  produced  on  the  place.  He  put  twenty-five  cords  of  the  manure 
made  from  this  fodder,  and  manure  of  the  same  quality  and  value 
made  from  fodder  raised  on  the  place,  together  in  a  heap,  where  they 
were  so  intermixed  that  they  could  not  be  distinguished.  The  defend- 
ant prevented  him  from  taking  away  the  twenty-five  cords. 

Carpenter,  J.**  The  plaintiff  held  the  farm  after  the  expiration 
of  three  years,  as  tenant  from  year  to  year,  upon  the  terms  expressed 
in  the  lease.  Russel  v.  Fabyan,  34  N.  H.  218,  223;  Conway  v.  Stark- 
weather, 1  Denio  (N.  Y.)  113.  Manure  made  upon  the  farm  by  the 
consumption  of  its  product  in  the  ordinary  course  of  husbandry  is  a 
part  of  the  realty.  It  cannot  be  sold  or  carried  away  by  a  tenant  with- 
out the  landlord's  consent.  *  *  *  However  that  may  be,  no  rule  of  good 
husbandry  requires  a  tenant  to  buy  hay  or  other  fodder  for  consump- 
tion on  the  farm.  If,  in  addition  to  the  stock  maintainable  from  its 
products,  he  keeps  cattle  for  hire  and  feeds  them  upon  fodder  procured 
by  purchase  or  raised  by  him  on  other  lands,  the  landlord  has  no  more 
legal  or  equitable  interest  in  the  manure  so  produced  than  he  has  in 
the  fodder  before  it  is  consumed.  It  is  not  made  in  the  ordinary  course 
of  husbandry.  It  is  produced  "in  a  manner  substantially  like  making 
it  in  a  liverj-  stable."  Hill  v.  De  Rochemont,  48  N.  H.  87,  90;  Corey 
V.  Bishop,  48  N.  H.  146,  148.  It  is  immaterial  whether  the  additional 
stock  is  kept  for  hire,  or  is  the  tenant's  property.  Needham  v.  Allison, 
24  N.  H.  355. 

The  plaintiff  did  not  lose  his  property  in  the  manure  by  intermixing 
it  with  the  defendant's  manure  of  the  same  quality  and  value  without 
his  consent.  It  is  not  claimed  that  the  plaintiff'  mixed  the  manure  with 
any  fraudulent  or  wrongful  intent.  "The  intentional  and  innocent  in- 
termixture of  property  of  substantially  the  same  quality  and  value 
does  not  change  the  ownership.  And  no  one  has  a  right  to  take  the 
whole,  but  in  so  doing  commits  a  trespass  on  the  other  owner.  He 
should  notify  him  to  make  a  division,  or  take  his  own  proportion  at 

*•  Part  of  the  opinion  Is  omitted. 


'212  ACQUISITION    OF   OWXKKSIIIP  (Cll.  4 

his  peril,  taking  care  to  leave  to  the  other  owner  as  much  as  belonged 
to  him."    Ryder  v.  Hathaway,  21  Pick.  (Mass.)  298,  306.     *     *     * 

Whether  the  parties  were  tenants  in  common  of  the  manure  is  a 
question  that  need  not  be  determined.  Gardner  v.  Dutch,  9  Alass.  427, 
430,  431 ;  Ryder  v.  Hathaway,  21  Pick.  298,  305  ;  Chapman  v.  Shep- 
hard,  39  Conn.  413,  425;  Kimberly  v.  Patchin,  19  N.  Y.  330,  341,  75 
Am.  Dec.  334.  Assuming  that  they  were,  the  action  may  be  main- 
tained. A  tenant  in  common  has  the  same  right  to  the  use  and  enjoy- 
ment of  the  common  property  that  he  has  to  his  sole  property,  except 
in  so  far  as  it  is  limited  by  the  equal  right  of  his  co-tenants.  Where 
two  have  each  an  equal  title  to  an  indivisible  chattel,  "as  of  a  horse  an 
c.ce  or  a  cowe,"  neither,  without  actual  and  exclusive  possession  of  the 
,  Aattel,  can  enjoy  his  moiety.  Simultaneous  enjoyment  by  each  of  his 
jqual  right  is  impossible.  Hence,  neither  can  lawfully  take  it  from  the 
possession  of  the  other.  The  one  excluded  from  possession  has  no  le- 
gal remedy  except  to  take  it  "when  he  can  see  his  time."  Lit.  S,  323 ; 
Southworth  v.  Smith,  27  Conn.  355,  359,  71  Am.  Dec.  72. 

A  tenant  in  common  of  personal  as  well  as  real  property  has  a  right 
to  partition  if  partition  is  possible,  and  if  not,  to  a  regulation  of  its  use 
equivalent  to  partition  or  to  a  sale.  Co.  Lit.  164  b,  165  a ;  Stoughton  v. 
Leigh,  1  Taunt.  402,  411.  412;  IMorriU  v.  Morrill,  5  N.  H.  134,  135; 
Crowell  V.  Woodbury,  52  N.  H.  613.  On  partition  he  is  entitled  to  no 
particular  part  of  the  property,  but  only  to  his  due  proportion  in  value 
and  quality  of  the  whole.  When  it  consists  of  chattels  differing  in 
quality  and  value,  an  appraisal  of  the  value  and  a  consideration  of  the 
qualities  of  the  several  chattels  are  essential  to  an  assignment  to  each 
of  his  just  share.  In  this  case,  as  in  that  of  a  single  indivisible  chat- 
tel, if  the  parties  cannot  agree  upon  the  use,  sale,  or  division,  judicial 
intervention  is  necessary.  Until  an  adjudication  of  their  rights,  neither 
can  assert  a  title  in  severalty  to  any  portion  of  the  property.  When 
the  common  property  is  divisible  by  weight,  measure,  or  number  into 
portions  identical  in  quality  and  value,  as  corn  and  various  other  ar- 
ticles, a  different  case  is  presented.  There  is  no  question  of  legal  or 
equitable  right.  There  is  and  can  be  no  dispute  that  a  court  of  law  or 
equitj'  can  settle.  Counting,  weighing,  and  measuring  are  not  judicial, 
but  ministerial  functions.  Equity  could  do  no  more  than  decree  that 
each  might  take  so  many  pounds,  bushels,  or  yards,  or  so  many  of.  the 
articles  in  number,  and  enforce  its  decree  by  process,  in  other  words, 
enforce  the  conceded  right.  One  may  in  general  do  without  a  decree 
what  equity  would  decree  that  he  might  do.  Neither  law  nor  equity 
allows  one  in  the  exercise  of  his  own  rights  to  do  an  unnecessary  and 
avoidable  injury  to  another.  One  is  entitled  to  the  possession  of  the 
whole  in  those  cases  only  where  it  is  necessary  to  his  enjoyment  of  his 
moiety.  Here  it  is  not  necessary.  There  is  no  more  difficulty  in  sep- 
arating one  portion  from  another,  than  there  is  in  selecting  A.'s  marked 
sheep  from  B.'s  flock.    Eitber  may  make  the  division.    The  law  is  not 


Sec.  4)  CONFUSION  213 

so  unreasonable  as  to  compel  a  resort  to  the  courts  in  order  to  obtain  a 
partition  which  either  may  make  without  expense  and  without  danger 
of  injustice  to  his  co-tenant.  Except  in  Daniels  v.  Brown,  34  N.  H. 
454,  69  Am.  Dec.  505,  it  has  never  been  held,  so  far  as  observed,  that  a 
tenant  in  common  is  liable  to  his  co-tenant  in  any  form  of  proceeding 
for  taking  from  the  latter's  possession  and  consuming  or  destroying  his 
just  proportion  only  of  the  common  prof>erty.  The  conveyance  by  a 
tenant  in  common  of  a  part  of  the  common  land  by  metes  and  bounds 
may  effect  a  partition  and  will  if  it  does  no  injustice  to  his  co-tenants, 
— if  their  just  share  can  be  assigned  to  them  out  of  the  remaining  land. 
Holbrook  v.  Bowman,  62  N.  H.  313,  321.  No  reason  is  perceived  why 
a  similar  doctrine  should  not  be  applied  in  the  case  of  a  common  ten- 
ancy of  chattels.  If  A  and  B  own  in  common  100  horses,  and  B  sells 
10  of  them  to  C,  why  should  A  be  permitted  to  take  them  "when  he 
can  see  his  time,"  if  he  has  possession  of  and  can  have  his  full  share 
assigned  to  him  from  the  remaining  90?  However  that  may  be,  a  ten- 
ant in  common  of  goods  divisible  by  tale  or  measure  may,  without  the 
consent  and  against  the  will  of  his  co-tenant,  rightfully  take  and  ap- 
propriate to  his  sole  use,  sell,  or  destroy  so  much  of  them  as  he  pleases, 
not  exceeding  his  share,  and  by  so  doing  effect  pro  tanto  a  valid  parti- 
tion. To  this  extent  Daniels  v.  Brown,  supra,  is  overruled.  Haley  v. 
Colcord,  59  N.  H.  7,  8,  47  Am.  Rep.  176;  Gage  v.  Gage,  66  N.  H.  282, 
288.  29  Atl.  543,  28  L.  R.  A.  829;  Seldon  v.  Hickock.  2  Gaines  (N.  Y.) 
166:  Lobdell  v.  Stowell,  51  N.  Y.  70,  and  cases  cited:  Stall  v.  Wilbur, 
77  N.  Y.  158,  164:  Cooley,  Torts,  455;  6  Am.  Law  Rev.  455-459,  and 
cases  cited.  The  defendant  by  preventing  the  plaintiff  from  taking  his 
part  of  the  manure,  exercised  a  dominion  over  it  inconsistent  with  the 
plaintiff's  rights.  Evans  v.  Mason,  64  N.  H.  98,  5  Atl.  766. 
Judgment  for  the  plaintiff. ■•= 

■45  A.  mortgaged  90  bushels  of  wheat  to  X.  He  then  in  good  faith  confused 
It  with  120  bushels  of  his  own  wheat.  He  sold  51  bushels  to  B.,  a  bona  fide 
purchaser,  and  later  delivered  the  rest  to  other  third  persons.  Held,  X.  cannot 
maintain  trover  against  B.    Stone  v.  Quaal,  36  Minn.  46,  29  X.  W.  326  (1SS6). 

X.  sold  his  standing  timber  to  A.,  the  title  to  remain  in  X.  until  paid  for. 
and  with  the  right  to  re.sume  possession  if  the  conditions  of  the  contract  were 
broken.  A.  mixed  the  lumber  from  this  timber  with  his  own  of  the  same 
quality,  and  sold  part  to  B.,  a  bona  fide  purchaser.  A.  not  having  paid  X.. 
X.  seized  the  lumber  sold  to  B.  Held,  he  is  liable  to  B.  in  trover,  except  as 
to  the  identical  lumber  that  he  can  show  was  cut  from  his  land.  Foster  v. 
Warner,  49  Mich.  641,  14  X.  W.  673  (1SS3). 

X.  knew  that  A.,  her  husband,  was  mixing  corn  grown  on  X.'s  land  b.v  A. 
with  mortgaged  com  grown  by  A.  on  his  own  land.  Held,  the  amount  from 
the  respective  pieces  not  being  known,  it  is  all  subject  to  the  mortgage 
Wells  V.  Batts,  112  N.  C.  283,  17  S.  E.  417,  84  A/B.  St.  Rep.  506  (1S93). 

See  Pratt  v.  Bryant,  20  Vt.  333  (1S4S). 


214  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

BEACH  et  al.  v.  SCHMULTZ. 
(Supreme  Court  of  IlUnois,  1858.    20  111.  185.) 

[Replevin  by  Schmultz  against  the  plaintiffs  in  error  who  as  credi- 
tors of  one  Oscar  Gray  had  attached  the  property  in  question.] 

The  defendant  offered  in  evidence  the  two  depositions  of  Oscar 
Gray.  *  *  *  Jn  the  first  deposition  taken,  the  witness,  Oscar  Gray, 
states  in  answer  to  the  first  interrogatory,  that  he  acted  as  agent  for 
Schmultz  during  the  summer  and  fall  of  1856,  in  manufacturing  and 
shipping  lumber  to  him.  That  he  shipped  from  Green  Bay  about  75  to 
100  M.  feet  of  lumber  on  the  schooner  Main,  to  Milwaukee,  on  or 
about  the  29th  of  September,  1856,  and  that  it  arrived  at  Milwaukee, 
but  the  captain  of  the  schooner,  without  unloading,  went,  as  witness 
was  informed,  to  Chicago.     *     *     * 

In  the  second  deposition,  the  said  witness,  Oscar  Gray,  states  *  *  * 
that  he  shipped  a  cargo  of  lumber,  about  seventy-five  to  one  hundred 
M.  feet  of  lumber,  consisting  of  plank,  boards,  and  scantling  and  shin- 
gles, but  cannot  tell  how  much  of  each,  on  the  29th  of  September,  1856, 
on  the  schooner  Main.  I  was  the  owner  of  tlie  shingles,  and  Schmultz 
and  myself  were  tlie  owners  of  the  balance  of  the  lumber.  Schmultz 
and  myself  owned  said  cargo  separately ;  Schmultz  owned  probably 
one-half  of  said  cargo,  and  I  the  other  half ;  it  consisted  of  plank, 
boards,  joists  and  scantling.  I  can't  tell  the  number  of  feet  belonging 
to  each  of  us.  That  he  understood,  and  such  were  his  instructions,  if 
he  had  any  from  Schmultz,  to  ship  his  lumber  to  him  at  Chicago.  No 
person  could  have  identified  Schniultz's  lumber  from  his  on  the  vessel ; 
said  lumber  was  taken  to  Milwaukee  by  his  direction,  without  author- 
ity from  Schmultz.     *     *     * 

BreesE,  J.''"  *  *  *  The  question  of  real  moment  in  the  case 
brings  up  the  doctrine  of  confusion  of  goods,  so  far  as  the  principal 
cargo  is  concerned,  which  the  proof  shows  consisted  of  dift'erent  kinds 
and  qualities  of  lumber,  of  different  grades — "of  plank,  boards  and 
scantling,"  and  some  shingles.  As  to  the  lumber.  Gray  swears  that  he 
owned  one-half  and  Schmultz  the  other  half  of  the  cargo,  separately, 
and  were  so  mixed  together  as  that  the  several  parts  were  incapable 
of  identification.  Besides  this,  som.e  lumber  was  borrowed  of  others 
to  make  up  the  cargo,  and  the  vessel  ordered  to  I\Iilwaukee,-  against 
the  directions  of  Schmultz,  that  she  should  deliver  her  cargo  at  Chica- 
go. There  are  circumstances  in  the  case  tending  to  show  an  intention 
on  the  part  of  Gray,  to  dispose  of  the  cargo  at  Milwaukee,  and  thus  de- 
fraud Schmultz ;  and  for  this  bad  purpose,  the  several  portions  belong- 
ing to  Schmultz  and  Gray,  and  that  borrowed,  were  mixed  up,  without 

46  The  statement  of  facts  is  abridged  and  part  of  tlie  opinion  is  omitted. 


Sec.  4)  CONrosiON  215 

the  knowledge  or  consent  of  Schmultz,  so  as  to  deprive  him  of  his 
share,  as  it  would  appear. 

The  doctrine  on  tliis  subject  is  thus  stated  by  Blackstone  at  page  405, 
vol.  2  of  his  Commentaries.  After  treating  of  title  to  goods  by  acces- 
sion, he  says:  "But  in  the  case  of  confusion  of  goods,  where  those  of 
two  persons  are  so  intermixed  that  the  several  portions  can  be  no  long- 
er distinguished,  the  English  law  partly  agrees  with  and  partly  differs 
from  the  civil.  If  the  intermixture  be  by  consent,  I  apprehend  that,  in 
both  laws,  the  proprietors  have  an  interest  in  common,  in  proportion  to 
their  respective  shares.  But  if  one  willfully  intermixes  his  money,  corn 
or  hay  with  that  of  another  man,  without  his  approbation  or  knowledge, 
or  casts  gold  in  like  manner,  into  another's  melting  pot  or  crucible,  the 
civil  law,  though  it  gives  the  sole  property  of  the  whole  to  him  who  has 
interfered  in  the  mixture,  yet  allows  a  satisfaction  to  the  other  for 
what  he  has  so  improvidently  lost.  But  our  law,  to  guard  against 
fraud,  gives  the  entire  property,  without  any  account,  to  him  whose 
original  dominion  is  invaded,  and  endeavored  to  be  rendered  uncertain,' 
without  his  own  consent." 

This  doctrine,  as  thus  laid  down,  is  not  disputed  any  where  in  courts 
where  the  common  law  is  the  rule  of  decision. 

Gray,  then,  having  wrongfully  produced  this  confusion,  by  an  unau- 
thorized intermixture,  necessarily  forfeits  his  right  to  the  whole,  and 
the  plaintiffs  in  error,  his  creditors,  can  have  no  right  or  claim  to  levy 
an  attachment  upon  it.  The  court  could  do  no  otherwise  than  to  find 
for  Schmultz,  the  defendant  in  error,  that  it  was  his  property. 

The  case  shows  that  shingles  were  a  part  of  the  cargo,  and  were 
Gray's  separate  property,  and  as  they  can  be  readily  distinguished  and 
separated,  and  as  they  belonged  to  Gray  when  shipped,  it  is  contended 
they  are  yet  his,  and  subject  to  the  attachment.  It  is  a  sufficient  answer 
to  this  to  say,  that  the  facts  show  the  whole  cargo  was  consigned  to 
Schmultz,  and  that  he  paid  the  freight  on  it.  He,  as  consignee,  had, 
therefore,  a  right  to  the  possession  of  the  shingles. 

The  merits  of  the  case  are  wholly  with  the  defendant  in  error,  and 
the  judgment  of  the  Circuit  Court  is  affirmed. 

Judgment  affirmed.*^ 

4'Acc. :  Ward  v.  Ayre,  Cro.  Jac.  366  (1615);  Wingate  v.  Smith,  20  Me. 
287  (1841) ;  Stephenson  v.  Little,  10  Mich.  433  (1S62).  Compare  Levyeau  v. 
aements,  175  Mass.  376,  56  N.  E.  735,  50  L.  R.  A.  397  (1900). 


216  ACQUISITION  OF  OWNEItSniP  (Ch.  4 

JENKINS  V.  STEANKA. 
(Supreme  Court  of  Wisconsin,  1S65.    19  Wis.  126,  88  Am.  Dec.  675.) 

The  action  below  was  by  Jenkins  and  others  against  Steanka,  to  re- 
cover possession  of  certain  lumber,  or  the  value  thereof  (alleged  to  be 
$400),  with  damages  for  the  detention.  The  plaintiffs  obtained  pos- 
session under  the  statute.  Steanka  was  master  of  a  sloop  in  which 
the  lumber  was  found  when  seized  by  the  sheriff;  and  claimed  by  his 
answer  that  the  title  to  the  lumber  was  in  one  Wright  (for  whom  he 
was  carrying  the  same  on  said  sloop),  subject  to  a  lien  for  freight  in 
favor  of  the  owner  of  said  sloop,  and  that  said  defendant,  at  the  time 
of  such  seizure,  was  entitled  to  the  possession  as  agent  of  said  owner. 

The  jury  found  that  defendant  had  the  right  of  possession  at  the 
commencement  of  the  action;  that  Wright  owned  the  lumber;  and 
that  the  value  was  $360 ;  and  nominal  damages.  Judgment  according- 
ly ;   and  plaintiffs  sued  out  their  writ  of  error. 

Downer,  J.**  This  is  an  action  to  recover  forty  thousand  feet  of 
pine  lumber,  alleged  in  the  complaint  to  be  wrongfully  detained  by 
the  defendant,  and  of  the  value  of  $400.     *     *     * 

Questions  were  put  to  different  witnesses  by  the  plaintiffs  during 
the  progress  of  the  trial,  as  to  what  the  kind  or  quality  of  the  lumber 
in  dispute  was.  The  court  below  refused  to  permit  these  questions  to 
be  answered.  It  seems  to  us  the  answers  should  have  been  received. 
They  were  competent  as  bearing  on  the  question  of  the  value  of  the 
lumber;  also  for  another  purpose.  Testimony  was  given  tending  to 
prove  that  some  part  of  the  lumber  in  dispute  was  manufactured  by 
one  Wright  in  his  mill,  at  Fremont,  out  of  logs  belonging  to  the  plain- 
tiffs and  cut  on  streams  above  Fremont,  and  that  tliere  was  a  great 
difference  in  the  quality  of  lumber  sawed  out  of  logs  cut  at  or  near 
Fremont  and  that  cut  out  of  the  plaintiffs'  logs,  the  latter  being  much 
superior  in  quality  to  the  former.  The  defendants'  witnesses,  or  some 
of  them,  testified  that  this  lumber  was  made  out  of  logs  cut  at  Fre- 
mont. After  this  testimony  was  in,  the  plaintiffs  renewed  their  in- 
quiry as  to  the  quality  of  the  lumber  in  dispute,  and  the  court  again 
ruled  the  evidence  inadmissible.  It  seems  to  us  that  it  was  clearlv  ad- 
missible as  tending  to  prove  whether  the  lumber  in  dispute  was  manu- 
factured out  of  the  plaintiffs'  or  Wright's  logs. 

The  circuit  court  also  erred  in  instructing  the  jury  that  "if  they 
found  for  the  plaintiffs,  they  could  only  recover  the  amount  of  lumber 
which  they  have  proved  to  have  been  wrongfully  taken  by  Wright,  al- 
though it  may  have  been  commingled  with  the  lumber  of  Wright 
wrongfully."  The  law,  we  think,  is  that  if  Wright  wilfully  or  in- 
discriminately intermixed  the  lumber  sawed  from  the  logs  of  the  j>lain- 
tiffs  with  his  own  lumber,  so  that  it  could  not  be  distinguished,  and 

*8  Part  of  the  opinion  is  omitted. 


Sec.  4)  CONFUSION  217 

the  lumber  so  mixed  was  of  different  qualities  or  value,  then  the  plain- 
tiffs would  be  entitled  to  hold  the  whole.  Willard  v.  Rice,  11  Mete. 
(Mass.)  493,  45  Am.  Dec.  226;  2  Kent's  Com.  (3d  Ed.)  364;  Ryder 
V.  Hathaway,  21  Pick.  (Mass.)  298.     *     *     * 

Judgment  of  the  court  below  reversed,  and  a  new  trial  ordered.*' 


WEIL  &  BRO.  V.  SILVERSTONE  et  al. 
(Court  of  Appeals  of  Kentucky,  1869.    69  Ky.  [6  Bush]  698.) 

[One  Lipman  owned  a  stock  of  goods,  he  sold  them  to  the  defend- 
ant who  mixed  them  with  other  goods  of  his  own  in  his  store  and  re- 
plenished the  stock  from  time  to  time.  The  plaintiffs,  creditors  of 
Lipman,  attached  the  stock  in  an  action  against  Lipman.  Judgment 
was  for  the  defendant  and  plaintiff's  appealed.] 

H.^RDiN,  T.^"  *  '■''■  *  It  is  further  objected  for  the  appellants 
that,  with  reference  to  the  evidence  conducing  to  prove  the  purchase 
of  Silverstone  of  the  goods  of  Lipman  to  have  been  fictitious  and  fraud- 
ulent and  that  to  prevent  identification  of  these  goods  Silverstone 
wrongfully  mixed  and  confused  them  with  others  which  belonged  to 
him.  the  court  erred  both  in  instructing  the  jury  at  the  instance  of 
Silverstone,  and  in  refusing  to  give  an  instruction  asked  by  the  appel- 
lants.   The  instruction  so  given  is  as  follows : 

"The  court  instructs  the  jury  that  none  of  the  goods  of  defendant 
Silverstone  are  liable  to  this  attachment,  except  those  that  he  bought 
of  Lipman;  and  if  they  believe  from  the  evidence  that  the  sale  was 
fraudulent,  and  that  Silverstone  took  part  in  the  fraud,  and  should 
also  believe  that  none  of  the  identical  goods  sold  by  Lipman  to  Silver- 
stone were  actually  attached  in  this  action,  they  must  find  for  defend- 
ant: and  if  the  jury  believe  that  any  of  the  identical  goods  sold  by 
Lipman  to  Silverstone  were  actually  attached  in  this  case,  they  must 
say  how  much,  and  only  find  against  Silverstone  for  that  amount : 
and  the  burden  of  proof  is  on  plaintiffs  to  identify  the  goods  attached 
as  the  goods  sold  by  Lipman  to  Silverstone,  or  what  part  of  them  was 
so  sold.''  And  said  instruction  asked  by  the  plaintiffr,  and  refused  is 
as  follows :  "The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  goods  attached  in  this  action,  or  any  part  of  them, 
were  sold  by  Lipman  to  Silverstone  with  the  fraudulent  intent  to  hin- 
der or  delay  the  creditors  of  Lipman  from  the  collection  of  their  debts, 
and  this  intent  was  known  to  Silverstone  at  the  time,  and  that  he  par- 
ticipated in  the  fraud,  and  that  Silverstone,  after  he  got  the  goods  in 
his  possession,  so  mixed  the  goods  with  his  own  that  they  might  not 

<6  Ace,  semble,  The  Idaho,  93  D.  S.  575,  23  L.  Ed.  978  (1876). 
s"  Part  of  the  opinion  is  omitted. 


218  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

be  identified,  then  the  law  is  for  the  plaintiffs,  and  the  jury  should 
so  find." 

The  point  of  objection  to  the  action  of  the  court  in  relation  to  these 
instructions  is,  that  the  court  virtually  excluded  from  the  jury  the  prin- 
ciples of  law  applicable  to  the  evidence  importing  a  willful  mixing  of 
the  goods  in  controversy  by  Silverstone  with  others,  for  the  fraudu- 
lent purpose  of  preventing  their  identification. 

The  doctrine  of  the  confusion  of  goods,  in  its  effects  on  the  rights 
of  immediate  owners,  may  be  considered  as  clearly  and  distinctly  set- 
tled. If  a  party  wilfully  so  confounds  the  property  of  another  with 
his  own  that  the  line  of  distinction  can  not  be  traced,  all  the  inconven- 
ience of  the  confusion  is  thrown  upon  the  party  who  produces  it,  and 
generally  it  is  for  him  to  distinguish  his  own  property  or  lose  it.  Hart 
V.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62,  513;  2  Blackstone's  Commen- 
taries, 405 ;  2  Kent's  Commentaries,  365 ;  Loomis  v.  Green,  7  Me.  (7 
Greenl.)  386.  And  in  the  case  of  the  levy  of  an  execution  or  attach- 
ment against  a  debtor  on  his  property,  which  another  person  has  fraud- 
ulently confounded  with  his  own,  if  the  latter  would  reclaim  his  own 
property,  the  burden  of  proof  is  on  him  to  distinguish  it  from  that  of 
the  debtor.  Drake  on  Attachment,  §  199;  Treat  v.  Barber,  7  Conn. 
274;  Robinson  v.  Holt,  39  N.  H.  557,  75  Am.  Dec.  233;  Smith  v. 
Sanborn,  6  Gray  (Mass.)  134.  It  needs  scarcely  to  be  suggested,  how- 
ever, that  these  principles  do  not  apply  where  the  property  of  a  debtor 
is  intermingled  with  that  of  another  from  casualty  or  accident,  or  with- 
out any  design  of  covering  the  property  of  the  debtor. 

Testing  the  action  of  the  court  below  by  the  foregoing  views  of 
the  law,  which  we  regard  as  applicable  to  this  case,  the  decision  of  the 
court,  in  effect,  that  although  the  sale  to  Silverstone  may  have  been 
fraudulent  and  invalid,  and  although  he  may  have  fraudulently  con- 
founded the  goods  with  his  own,  the  burden  was  nevertheless  on  the 
plaintiffs  to  distinguish  the  goods  which  belonged  to  Lipman,  was  in 
our  opinion  clearly  erroneous.  On  the  contrary,  the  court  should  have 
instructed  the  jury,  in  substance,  that  if  they  believed  from  the  evi- 
dence that  the  sale  and  transfer  of  the  goods  from  Lipman  to  Silver- 
stone were  made  with  the  intent  to  delay,  hinder,  or  defraud  Lipman's 
creditors,  and  were  at  the  time  so  known  to  be  by  Silverstone,  the  law 
was  for  the  plaintiffs  as  to  all  the  property  attached  which  was  so  sold 
and  transferred  by  Lipman ;  and  if  so,  and  before  the  levy  the  goods 
had  been  by  Silverstone  wilfully  mixed  with  others,  the  burden  was 
on  him  to  identify  his  own  goods  from  those  embraced  by  the  sale 
from  Lipman,  in  order  to  exempt  the  goods  so  owned  by  him  from 
sale  under  the  attachments.     *     *     * 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial, 
and  further  proceedings  not  inconsistent  with  this  opinion. °^ 

61  Ace:    James  v.  Burnet,  20  N.  J.  Law,  635  (1846). 

A.  mortgaged  a  flock  of  sheep  to  X.,  the  sheep  remaining  in  A.'s  posses- 


Sec.  4)  coNFnsioN  219 

ST.  PAUL  BOOM  CO.  v.  KEMP. 
(Supreme  Court  of  Wisconsin,  1905.    125  Wis.  138,  103  N.  W.  259.) 

[The  boom  company  had  in  its  possession  a  brail  of  sixty  three  logs. 
One  Hackett  tortiously  and  willfully  took  possession  of  the  logs  and 
sold  them  to  the  defendant  who  bought  with  knowledge  of  all  the 
facts.  The  defendant  sawed  three  quarters  of  the  logs  into  lumber 
which  he  mixed  with  his  own  lumber.  The  logs  so  cut  yielded  about 
6,000  feet  of  lumber.  The  whole  brail  of  logs  would  yield  8,000  feet 
of  lumber.  The  plaintiff  replevied  and  the  officer  took  possession  of 
some  of  the  uncut  logs  and  of  20,000  feet  of  lumber.  Judgment  be- 
low was  for  the  plaintiff  for  all  the  logs  and  lumber  so  seized.  The 
defendant  appealed.] 

SiEBECKER,  J.^^  *  *  *  'j'lig  court  awarded  judgment  in  re- 
spondent's favor  for  the  recovery  of  the  logs  and  lumber  seized  by  the 
officer,  and  for  costs.  It  is  contended  that  this  is  error.  The  jury 
found  that  the  brail  of  logs  contained  8,000  feet  of  manufactured  lum- 
ber, that  the  total  value  of  the  logs  was  $120,  and  that  the  quantity  re- 
covered by  respondent  was  worth  $30,  which,  on  the  basis  of  valuation 
found  by  the  jury,  would  be  one  fourth  of  the  whole  amount;  thus 
showing  that  three-fourths  of  the  logs  had  been  manufactured  into  lum- 
ber, which,  upon  this  calculation,  amounted  to  6,000  feet.  The  officer 
seized  20,000  feet  of  the  manufactured  lumber,  or  14,000  feet  in  ex- 
cess of  the  amount  the  logs  yielded.  The  trial  court  awarded  judg- 
ment for  the  recovery  of  the  whole  amount  seized  by  the  officer,  upon 
the  ground  that  a  wrongful  confusion  of  goods  operates  as  a  forfei- 
ture of  the  interest  of  the  wrongdoer  in  all  of  the  goods  so  intermixed. 
To  operate  such  a  forfeiture  it  must  appear  that  the  lumber  manufac- 
tured out  of  the  respondent's  logs  and  that  of  appellant  with  which  it 
was  mixed  were  so  different  in  description,  quality,  and  value  that 
the  whole  mass  could  not  be  ratably  apportioned  in  proportion  to  the 
quantities  contributed  to  the  whole  mass  by  the  original  owners.  The 
evidence  does  not  tend  to  show  that  there  was  a  difference  in  descrip- 

sion.  Subsequently  he  Intentionally  added  to  the  flock  other  sheep  of  the 
same  kind.  Held,  since  neither  the  individual  sheep  nor  the  proportion  sub- 
sequently added  by  A.  can  be  discovered,  the  entire  flock  is  subject  to  X.'s 
mortgage.  Ayre  v.  Hixson,  53  Or.  19.  98  Pac.  515,  133  Am.  St.  Rep.  819,  Ann. 
Cas.  1913E,  659  (1908).  Accord:  Hawkins  v.  Spokane  Hydraulic  Slin.  Co.,  3 
Idaho.  650,  33  Pac.  40  (1893) ;  Robinson  v.  Holt,  39  N.  H.  557,  75  Am.  Dec. 
233  (1859). 

A.  intentionally,  but  in  good  faith,  drew  gas  from  B.'s  well  and  mingled 
the  gas  of  60  wells  together,  keeping  practically  no  accounts  of  the  amount 
taken  from  B.'s  well.  Held,  B.  is  entitled  to  one-sixtieth  of  the  amount  for 
which  the  product  of  all  the  wells  sold  during  the  time  in  question.  Great 
Southern  Gas  &  Oil  Co.  v.  Logan  Natural  Gas  &  Fuel  Co..  155  Fed.  114,  83 
C.  C.  A.  574  (1907).  Compare  Stone  v.  Marshall  Oil  Co.,  208  Pa.  85,  57  Atl. 
183,  65  L.  R.  A.  218,  101  .Vm.  St.  Rep.  904  (1904). 

»2  Part  of  the  opinion  is  omitted. 


"220  ACQUISITION   OF  OWNKItSIIIP  (Ch.  4 

tion,  quality,  and  value  of  the  lumber  so  mixed.  There  is  nothing  to 
show  that  such  an  apportionment  could  not  be  made,  and  that  respond- 
ent would  not  be  fully  compensated  for  its  damage  by  having  its  pro- 
portion of  the  whole  mass  restored  to  it.     *     *     * 

We  are  constrained  to  hold  that  the  judgment  is  erroneous,  in  that 
it  awarded  to  respondent  the  right  to  hold  and  retain  the  logs  and 
20,000  feet  of  lumber  seized  by  the  officer  under  the  writ  of  replevin. 
Respondent  was  entitled  to  the  logs  seized,  and  to  its  full  proportion 
out  of  the  entire  quantity  of  lumber  seized,  namely,  6,000  feet,  and 
the  costs  of  the  action ;  and  appellant  was  entitled  to  a  return  of  the 
excess  of  the  lumber  so  seized,  or,  if  the  lumber  could  not  be  returned, 
to  its  value,  without  any  damages  for  the  seizure  of  such  excess  un- 
der the  writ  of  replevin.     *     *     * 

Judgment  reversed.'^* 


HESSELTINE  v.  STOCKWELL. 

(Supreme  Judicial  Court  of  Maine,  1849.    30  Me.  237,  50  Am.  Dee.  C27.) 

[One  Preble  wilfully  and  tortiously  cut  100  M  feet  of  timber  upon 
land  of  the  plaintiff  and  600  M  feet  of  the  same  quality  on  his  own 
land,  and  purposely  mixed  the  two  lots.  Part  was  marketed ;  part  was 
sold  to  the  defendant.  The  defendant  sold  all  but  100  M  feet.  This 
amount  was  seized  by  the  plaintiff.  The  defendant  retook  it  from  the 
plaintiff  who  brings  trover.] 

The  Court  instructed  the  jury,  that  the  plaintiff  must  prove  that  the 
logs  for  which  he  claimed  damages,  in  this  action,  had  been  cut  on 
his  land,  and  had  been  taken  by  the  defendant;  and  that  the  plaintiff 
was  entitled  to  recover  for  any  logs  cut  by  said  Preble  on  the  plaintiff's 
land,  and  which  were  taken  by  the  defendant,  unless  said  Preble  had 
paid  the  plaintiff  therefor;  and  that  it  did  not  appear  that  any  ques- 
tion of  confusion  of  property  arose  in  the  action. 

68  A.  and  B.  had  intersecting  veins  of  ore.  A.  intentionally  mined  lioth  from 
liis  and  B.'s  vein.  B.  sued  for  the  value  of  the  ore  so  converted.  The  court, 
in  reversing  an  instruction  given  in  the  trial  court,  said:  "The  instruction 
told  the  jury,  in  effect,  that  if  the  appellants  toolc  some  ore  which  belonged 
to  them,  and  some  which  belonged  to  respondents,  and  mixed  the  same,  re- 
sijondents  could  recover  the  value  of  the  whole,  unless  appellants  separated 
the  same  by  testimony,  and  proved  the  amount  which  rightfully  belonged  to 
each.  The  principle  of  the  Instruction,  curried  to  its  loglcnl  result,  might 
malie  appellants  liable  for  vastly  more  ore  than  was  ever  extracted  from  re- 
spondent's ground,  and  cannot  be  supported.  In  the  first  lusUuire  it  was  in- 
cumbent upon  the  respondents  to  mal^e  at  least  a  prima  facie  showing  of  the 
amount  of  ore  which  appellants  had  extracted  from  the  ground  descril)ed  In 
the  complaint,  and  under  no  theory  of  the  case  could  resixindents  recover 
more  than  the  value  of  that  amount  of  ore.  If  appellants  claim  that  a  por- 
tion of  the  ore  which  respondents  say  the  appellants  took  away  was  in  fact 
extracted  from  some  place  other  than  the  ground  in  disinite,  that  was  a  mat- 
ter of  defense  which  it  was  for  the  appellants  to  prove."  Maloney  v.  King. 
30  Mont.  158,  170,  76  Pac.  4  (1904). 


Sec.  i)  CONFUSION  221 

A  verdict  was  returned  for  the  defendant ;    plaintiff  excepted. 

SheplEy,  C.  J.^*  *  *  *  j£  Preble  wrongfully  cut  any  logs  on 
land  owned  by  the  plaintiff,  and  mixed  them  with  logs  cut  on  his  own 
land,  so  that  they  could  not  be  distinguished,  a  question  respecting  con- 
fusion of  goods,  might  properly  have  arisen.  The  admixture  might 
have  been  of  such  a  character,  that  the  whole  lot  of  logs,  including 
those  in  the  possession  of  the  defendant,  might  have  become  the  prop- 
erty of  the  plaintiff.  Or  it  might  have  been  of  such  a  character,  the 
logs  being  of  equal  value,  that  the  plaintiff  would  have  been  entitled 
to  recover  from  any  one  in  possession  of  those  logs  or  of  a  part  of 
them,  such  proportion  of  them,  as  the  logs  cut  upon  his  land  bore  to 
the  whole  number.     *     *     * 

Exceptions  sustained,  verdict  set  aside,  and  new  trial  granted.'" 


BRYANT  V.  WARE. 
(Supreme  Judicial  Court  of  Maiue,  1849.     30  Me.  29.5.) 

Howard,  J.'*  This  was  an  action  of  trespass  de  bonis  asportati^ 
for  a  quantity  of  cedar  railroad  sleepers,  juniper  knees,  shingles  and 
juniper  timber.  There  was  evidence,  as  stated  in  the  exceptions  tend- 
ing to  show  that  the  lumber  was  cut  in  the  winter  of  1840—41,  by  Sam- 
uel Potter,  a  trespasser,  on  two  contiguous  tracts  of  land,  and  hauled 
into  a  brook,  to  be  floated  down  to  a  market.  That  one  of  the  tracts  of 
land  was  owned  by  the  defendant,  and  that  the  other,  called  the  college 
land,  was  owned  by  Timothy  Boutelle.  That  in  the  spring  following, 
the  timber  was  run  down  to  the  Penobscot  river  and  rafted  into  eleven 
rafts,  six  of  which  were  run  to  Bangor,  immediately  after  by  Potter, 
and  "delivered  to  the  plaintiff  to  pay  him  what  Potter  owed  him,  and 
the  balance  to  be  paid  to  Potter  (the  plaintiff  having  supplied  Potter 
while  cutting  the  lumber)."  "That  Potter  was  a  trespasser  on  both 
lots,  on  which  he  cut  the  timber ;"  and  that  "there  was  no  other  inter- 
mingling of  the  timber  cut  from  both  tracts,  except  that  the  logs 
were  hauled  into  the  same  brook,  at  the  same  landing,  and  afterwards 
rafted  into  the  same  rafts,  there  being  no  marks  on  any  of  the  timber." 

The  defendant  took  the  five  rafts  at  Oldtown,  as  his  property,  and 
soon  after  took  the  remaining  six  rafts  out  of  the  possession  of  the 
plaintiff',  at  Bangor. 

The  instructions  to  the  jury,  to  which  exceptions  were  taken  and 
urged  in  the  argument,  were : 

1.  That,  if  a  part  of  the  lumber  was  cut  on  the  defendant's  land,  and 
a  part  on  the  college  land,  and  the  whole  was  mixed  together  in  such 

6*  Part  of  the  opinion  is  omitted. 

5  5  See  Norris  v.  U.  S.  (C.  C.)  44  Fed.  7.35  (1S91). 

66  Tlie  statement  of  facts  and  part  of  tlie  Dpininn  are  omitted. 


222  ACQUISITION  OF  OWNERSHIP  (Ch.  4 

a  manner,  by  those  who  cut  it,  that  it  could  not  be  distingnished,  the 
defendant  had  a  right  to  take  the  whole,  and  that  this  action  of  tres- 
pass could  not  be  maintained. 

2.  That  if  the  defendant  did  take  the  five  rafts  at  Oldtown,  and 
if  they  amounted  to  more  than  all  of  the  timber  cut  from  his  land, 
it  would  make  no  difference  where  he  took  it,  if  he  intended  to  seize 
all  of  the  timber  cut  as  before  mentioned,  if  they  found  that  it  was 
intermingled,  and  could  not  be  distinguished  as  before  stated. 

If  one  take  the  goods  of  another,  as  a  trespasser,  he  does  not  there- 
by acquire  a  title  to  them,  and  cannot  invest  another  with  a  title;  but 
the  original  owner  may  follow  his  property  and  reclaim  it  from  the 
trespasser,  or  any  other  person  claiming  through  him,  so  long  as  the 
identity  can  be  established. 

If  the  timber  taken  by  Potter,  as  a  trespasser,  from  the  land  of  the 
defendant,  was  so  mingled  with  the  other  timber  taken  by  him  from 
the  college  land,  that  it  could  not  be  distinguished,  it  would  produce 
what  is  denominated  a  confusion  of  goods.     *     *     * 

Where  the  confusion  or  commixture  of  goods,  is  made  by  consent  of 
the  owners,  or  by  accident,  and  without  fault,  so  that  they  cannot  be 
distinguished,  but  the  identity  remains,  each  is  entitled  to  his  propor- 
tion. 

This  was  also  the  doctrine  of  the  civil  law.  Just.  Inst.  Lib.  2,  tit. 
1,  §§  27,  28. 

But  if  such  intermixture  be  wilfully  or  negligently  effected  by  one, 
without  the  knowledge  or  approbation  of  the  other  owner,  the  latter 
would  be  entitled  by  the  common  law,  to  the  whole  property,  without 
making  satisfaction  to  the  former,  for  his  loss.  The  civil  law,  however, 
required  the  satisfaction  to  be  made.  Browne's  Civil  Law,  243 ;  Ward 
V.  Ayre,  Cro.  Jac.  366;  2  Black.  Com.  405;  2  Kent,  Com.  363,  364, 
where  the  civil  law  is  stated  differently  by  the  learned  Chancellor, 
page  364;  Story's  Com.  on  Bailments,  §  40;  Lupton  v.  White,  15 
Vesey,  440 ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62,  513. 

If  the  defendant  found  his  timber,  which  has  been  wrongfully  taken 
from  his  land,  mingled  with  other  timber,  in  the  manner  stated  in  the 
evidence,  so  that  it  could  not  be  distinguished,  he  had  clearly  a  right 
to  take  possession  of  the  whole,  without  committing  an  act  of  trespass, 
even  if  he  may  be  held  to  account  to  the  true  owner  for  a  portion  of  it. 
He  had,  at  least,  a  common  interest  in  the  property,  and  in  taking  pos- 
session, he  asserted  only  a  legal  right.  Inst.  lib.  tit.  1,  §  28;  Story's 
Com.  on  Bailments,  §  40. 

In  any  view  of  the  case,  upon  the  facts  presented,  the  instructions 
were  correct. 

Exceptions  overruled. 


Sec.  5)  JUDGMENT  223 

SECTION  5.— JUDGMENT 


ARMROYD  et  al.  v.  WILLIAMS  et  al. 

(Circuit  Court  of  the  United  States  [Pa.],  1811.     2  Wash.  C.  O.  508,  Fed. 

Cas.  No.  538.) 

Appeal  from  the  District  Court.  The  schooner  Fortitude,  belonging 
to  Williams  and  others,  the  libeilants,  citizens  of  the  Uhited  States, 
with  a  cargo  taken  in  at  Martinico,  and  a  part  of  her  outward  cargo 
carried  from  the  United  States,  sailed  on  the  20th  of  August,  1809, 
from  the  said  island  to  New  London,  consigned  to  one  of  the  libeilants. 
On  the  next  day,  she  was  captured  on  the  high  seas  by  a  French 
privateer,  and  carried  into  St.  IMartin's.  The  cargo  and  vessel  were 
sold,  by  order  of  the  governor  of  St.  Martin's  at  public  auction.  Nine- 
ty-seven hogsheads  of  molasses,  part  of  the  cargo,  were  sold  on  the 
15th  of  October,  and  sent  to  Philadelphia,  consigned  to  Armroyd  &  Co., 
restitution  of  which  was  demanded  by  the  libeilants,  and  refused ;  upon 
which  this  libel  was  filed. 

The  molasses  was  claimed  as  the  bona  fide  property  of  Richardson 
&  Cardy,  of  St.  Martin's  and  others.  The  claim  states,  that  at  the 
time  of  the  capture,  and  before  war  existed  between  England  and 
France,  the  Fortitude,  on  her  return  from  Martinico,  a  colony  under 
the  dominion  of  Great  Britain,  where  she  had  been  trading  with  the 
enemies  of  France,  contrary  to  the  decrees  of  France,  was  captured 
by  a  French  privateer  as  prize,  carried  into  St.  Martin's,  a  French  pos- 
session, and,  with  her  cargo,  sold  by  order  of  the  governor ;  that  the 
molasses  claimed  was  purchased,  bona  fide  by  certain  persons,  and 
afterwards  sold  by  them  to  those  for  whom  the  claim  is  made :  that 
on  the  12th  of  October,  1S09,  the  Court  of  Prize,  established  at  Guada- 
loupe,  a  French  Island,  condemned  t'ne  said  schooner  Fortitude  and  her 
cargo. 

The  sentence  of  the  Court  at  Guadaloupe,  after  setting  forth  the 
purport  of  the  papers  of  the  schooner,  proceeds  thus :  "It  results 
from  these  papers,  that  the  schooner  is  the  property  of  a  citizen  of  the 
United  States ;  that  she  sailed  from  New  London,  bound  to  Martinico, 
where  she  sold  her  cargo,  and  took  in  another  cargo  for  New  London, 
and  therefore  she  has  incurred  the  penalty  pronounced  by  the  Milan 
Decree,  dated  September  17,  1807  (which  is  set  out),  and  after  hear- 
ing the  opinion  of  the  inspector,  etc.,  we  declare  the  said  schooner  to 
have  been  duly  captured,  and  to  be  forfeited  to  the  captors.  Conse- 
quently, she  and  her  cargo  are  awarded  to  the  captors,  to  be  sold,  if  the 
sale  has  not  already  taken  place,"  etc. 

A  pro  forma  decree  having  been  made  by  the  District  Court  in  fa- 
vour of  the  libellant,  an  appeal  was  prayed  to  the  Circuit  Court. 


224  ACQUISITION   OF   OWNERSHIP  (Cll.  4 

Washington,  J.°'  The  question  is,  is  the  sentence  of  the  Prize 
Court  at  Guadaloupe  conchisive  to  divest  the  right  of  the  original  own- 
ers of  the  property,  condemned  by  tliat  sentence,  and  to  vest  it  in  the 
purchaser  under  it?  The  doctrine  of  the  British  Courts,  acknowledged 
and  adopted  by  the  Courts  of  the  United  States,  is  that  the  sentence 
or  decree  of  a  Court  of  exclusive  jurisdiction,  operating  directly  on 
the  thing  itself,  is  conclusive  between  the  same  parties,  upon  the  same 
matter  coming  directly  or  incidentally  in  question,  in  another  Court  of 
co-ordinate  jurisdiction,  not  only  of  the  right  which  it  establishes,  but 
of  the  fact  which  it  directly  decides.     *     *     * 

As  to  the  direct  effect  of  the  sentence  upon  the  thing  condemned,  no 
doubt  has  ever  been  entertained,  that  it  is  conclusive  to  work  a  change 
of  the  property,  so  long  as  that  sentence  remains  in  force,  unreversed 
by  a  superior  and  appellate  tribunal.  If  the  principle  be  thus  general 
and  inflexible,  it  is  unimportant  whether  the  foreign  sentence  be  er- 
roneous or  not,  or  whether  the  error  consist  in  the  mistake  of  the 
Court  in  matter  of  fact,  or  a  misconception  of  the  acknowledged  law 
of  nations,  or  is  founded  upon  foreign  laws  avowedly  repugnant  to 
the  law  of  nations.     *     *     * 

The  rule  of  law  which  governs  the  Court  in  deciding  this  case,  is, 
in  our  opinion,  a  wise  one ;  and  it  has  appeared  otherwise  only  during 
a  few  years  past,  because  the  regular  order  of  things  has  been  dis- 
turbed and  disfigured  by  the  violence  and  rapine  of  the  belligerents. 
We  confess  that  we  sicken  with  disgust,  in  giving  to  the  appellees 
the  benefit  of  a  general  principle  of  law,  which  compels  submission  to 
so  daring  an  outrage  upon  our  neutral  rights.  But  we  must  obey  the 
law,  and  leave  to  our  government  the  task  of  protecting  its  citizens. 

Sentence  reversed.^* 


GRIFFITH  v.  FOWLER. 

(Suprpine  Com-t  of  Vermont,  1S46.     IS  Vt.  P.OO.) 

Trespass  for  taking  a  shearing  machine.  The  case  was  submitted 
upon  a  statement  of  facts,  agreed  to  by  the  parties,  from  which  it 
appeared,  that  in  1836  the  defendant,  being  the  owner  of  the  machine 
in  question,  lent  it  to  one  Freeman,  to  use  in  his  business  as  a  clothier, 
who  was  to  pay  a  yearly  rent  therefor,  and  in  whose  possession  it  re- 
mained until  the  year  1841,  when  it  was  sold  at  sheriff's  sale,  on  ex- 
ecution, as  the  property  of  Freeman,  and  one  Richmond  became  the 
purchaser;  that  Richmond,  in  January,  1842,  sold  the  machine  to  the 
plaintiff,  who  at  the  same  time  purchased  of  Freeman  the  building,-  in 
which  the  machine  was  situated,  and  took  possession  thereof ;  and  that 

6'  I'art  of  the  opinion  is  omitted. 

5  8  Ace:   Hughes  v.  Cornelius,  2  Show.  232  (16S0). 


Sec.  5)  JUDGMENT  225 

the  defendant,  in  February,  1842,  took  the  machine  from  the  plaintiff's 
possession,  claiming  it  as  his  property.  The  value  of  the  machine  was 
admitted  to  be  fifty  dollars. 

Upon  these  facts  the  county  court— -Hebard,  J.,  presiding — rendered 
judgment  for  the  defendant.     Exceptions  by  plaintiff. 

RedfiEld,  J.°*  The  only  question  reserved  in  this  case  is,  whether 
a  title  to  personal  property,  acquired  by  purchase  at  sheriff's  sale,  is 
absolute  and  indefeasible  against  all  the  world,  or  whether  such  sale 
only  conveys  the  title  of  the  debtor. 

There  has  long  been  an  opinion,  very  general,  I  think,  in  this  state, 
not  only  among  the  profession,  but  the  people,  that  a  purchaser  at 
sheriff's  sale  acquires  a  good  title,  without  reference  to  that  of  the 
debtor,  that  such  a  sale,  like  one  in  market  overt  in  England,  conveys 
an  absolute  title.  But,  upon  examination,  I  am  satisfied  that  this  opin- 
ion acts  upon  no  good  basis. 

So  far  as  can  now  be  ascertained,  this  opinion,  in  this  state,  rests 
mainly  upon  a  dictum  in  the  case  of  Heacock  v.  Walker,  1  Tyler  338. 
*     *     * 

There  are  sufficient  reasons  why  the  dictum  should  not  be  re- 
garded if  the  thing  were  new.  And  we  do  not  esteem  the  long  stand- 
ing of  the  dictum  of  any  importance,  unless  it  can  be  shown,  that  i: 
has  thus  grown  into  a  generally  received  and  established  law,  or  usage : 
which,  we  think,  is  not  the  case  in  regard  to  this.  For  this  court  has, 
within  the  last  ten  years,  repeatedly  held,  that  a  sheriff's  sale  was  of 
no  validitj'  to  pass  any  but  the  title  of  the  debtor,  when  no  actual  de- 
livery of  the  tiling  sold  tvas  made  by  the  sheriff,  at  the  time  of  sale. 
.A.ustin  V.  Tilden  et  al.,  14  Vt.  325;  Boynton  v.  Kelsey,  Caledonia 
County,  1836;  S.  P.,  Lamoille  County,  1841.  Since  the  first  of  these 
cases  was  decided,  the  main  question,  involved  in  this  case,  has  been 
considered  doubtful  in  this  state,  and  we  now  feel  at  liberty  to  decide 
it,  as  we  think  the  law  should  be,  that  is,  as  it  is  settled  at  common 
law. 

But  the  idea,  that  some  analog}'  existed  between  a  sheriff's  sale  and 
a  sale  in  market  overt  is  certainly  not  peculiar  to  the  late  Chief  Jus- 
tice Tyler.  This  opinion  seems  at  one  time  to  have  prevailed  in  West- 
minster Hall,  to  some  extent,  at  least;  for  in  the  case  of  Farrant  v. 
Thompson,  5  B.  &  A.  826  (7  E.  C.  L.  272),  which  was  decided  in  the 
King's  Bench  in  1822,  nearly  twenty  years  later  than  that  of  Heacock 
V.  W'alker,  one  of  the  points  raised  in  the  trial  of  the  case  before  Chief 
Justice  Abbott  was,  that  the  title  of  the  purchaser,  being  acquired  at 
sheriff's  sale,  was  good  against  all  the  world,  the  same  as  that  of  a 
purchaser  in  market  overt.  This  point  was  overruled,  and  a  verdict 
passed  for  tlie  plaintiff,  but  with  leave  to  move  to  set  it  aside,  and  to 
enter  a  nonsuit,  upon  this  same  ground,  with  one  other.     This  point 

B>  Part  of  the  opinion  is  omitted. 
Bio.Pees.Pbop. — 15 


226  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

was  expressly  argued  by  Sir  James  Scarlet — who  was  certainly  one  of 
the  most  eminent  counsel,  and  one  of  the  most  discriminating  men 
of  modern  times — in  the  King's  Bench,  and  was  decided  by  the  court 
not  to  be  well  taken.  Since  that  time  I  do  not  find,  that  the  question 
has  been  raised  there. 

It  seems  to  be  considered  in  Massachusetts,  and  in  New  York,  and 
in  many  of  the  other  states,  that  nothing,  analogous  to  markets  overt 
in  England,  exists  in  this  country.  Dame  v.  Baldwin,  8  Alass.  518; 
Wheelwright  v.  De  Peyster,  1  Johns.  (N.  Y.)  480,  3  Am.  Dec.  345 ;  2 
Kent,  324,  and  cases  there  cited.  Nothing  of  that  kind,  surely,  exists 
in  this  state,  unless  it  be  a  sheriff's  sale.  And  if  the  practice  of  hold- 
ing sales  in  market  overt  conclusive  upon  the  title  existed  in  any  of 
the  states,  it  would  be  readily  known.  I  conclude,  therefore,  that 
Chancellor  Kent  is  well  founded  in  his  opinion,  when  he  affirms,  that 
the  law  of  markets  overt  does  not  exist  in  this  country.     Id. 

It  seems  probable  to  me,  that  the  idea  of  the  conclusiveness  of  a 
sheriff's  sale  upon  the  title  is  derived  from  the  effect  of  sales  under 
condemnations  in  the  exchequer,  for  violations  of  the  excise  or  revenue 
laws,  and  sales  in  prize  cases,  in  the  Admiralty  courts,  either  provi- 
sionally, or  after  condemnation.  But  these  cases  bear  but  a  slight 
analogy  to  sheriff's  sales  in  this  country,  or  in  England.  Those  sales 
are  strictly  judicial,  and  are  merely  carrying  into  specific  execution 
a  decree  of  the  court  in  rem,  which,  by  universal  consent,  binds  the 
whole  world. 

Something  very  similar  to  this  exists,  in  practice,  in  those  coun- 
tries, which  are  governed  by  the  civil  law ;  which  is  the  fact  in  one 
of  the  American  states,  and  in  the  provinces  of  Canada,  and  in  most, 
if  not  all,  the  continental  states  of  Europe.  The  property,  or  what  is 
claimed  to  be  the  property,  of  the  debtor  is  seized  and  libelled  for 
sale,  and  a  general  monition  served,  notifying  all  having  adversary 
claims  to  interpose  them  before  the  court  by  a  certain  day  limited.  In 
this  respect  the  proceedings  are  similar  to  proceedings  in  prize  courts, 
and  in  all  other  courts  proceeding  in  rem.  If  no  claim  is  interposed, 
the  property  is  condemned,  by  default,  and  sold ;  if  such  claims  are 
made,  tliey  are  contested,  and  settled  by  the  judgment  of  the  court, 
and  the  rights  of  property  in  the  thing  are  thus  conclusively  settled 
before  the  sale. 

But  with  us  nothing  of  this  character  exists  in  regard  to  sheriff's 
sales.  Even  the  right  to  summon  a  jury  to  inquire  into  conflicting 
claims  de  bene  esse,  as  it  is  called  in  England,  and  in  the  American 
states,  where  it  exists,  has  never  been  resorted  to  in  this  state.  And 
in  England,  where  such  a  proceeding  is  common, — Impey,  153;  Dal- 
ton,  146;  Farr  et  al.  v.  Newman  et  al.,  4  T.  R.  621, — it  does  not  avail 
the  sheriff,  even,  except  to  excuse  him  from  exemplary  damages.  Lat- 
kow  V.  Earner,  2  H.  Bl.  437;  Glassop  v.  Poole,  3  M.  &  S.  175.  It 
is  plain,  then,  that  a  sheriff's  sale  is  not  a  judicial  sale.     If  it  were. 


Sec.  C)  SATISFACTIOX   OF  JUDGMENT  227 

no  action  could  be  brought  against  the  sheriff,  for  selling  upon  execu- 
tion property  not  belonging  to  the  debtor. 

With  us  an  execution  is  defined  to  be  the  putting  one  in  possession 
of  that,  which  he  has  already  acquired  by  judgment  of  law.  Co.  Lit- 
154  a  (Thomas'  Ed.  405).  But  the  judgment  is  of  a  sum  in  gross 
"to  be  levied  of  the  goods  and  chattels  of  the  debtor,"  which  the  sher- 
iff is  to  find  at  his  peril.  The  sale  upon  the  execution  is  only  a  trans- 
fer, by  operation  of  law,  of  what  the  debtor  might  himself  transfer. 
It  is  a  principle  of  the  law  of  property,  as  old  as  the  Institutes  of 
Justinian,  Ut  nemo  plus  juris  in  alium  transferre  potest,  quam  ipse 
habet. 

The  comparison  of  sheriff's  sales  to  the  sale  of  goods  lost,  or  estrays, 
in  pursuance  of  statutory  provisions,  which  exist  in  many  of  the  states, 
does  not,  in  my  opinion,  at  all  hold  good.  Those  sales  undoubtedly 
transfer  the  title  to  the  thing,  as  against  all  claims  of  antecedent  prop- 
erty in  any  one,  if  the  statutory  provisions  are  strictly  complied  with ; 
but  that  is  in  the  nature  of  a  forfeiture,  and  is  strictly  a  proceeding 
in  rem,  wherein  the  finder  of  the  lost  goods  is  constituted  the  tribunal 
of  condemnation. 

There  being,  then,  no  ground,  upon  which  we  think  we  shall  be 
justified  in  giving  to  a  sheriff's  sale  the  effect  to  convey  to  the  pur- 
chaser any  greater  title,  than  that  of  the  debtor,  the  judgment  of  the 
court  below  is  affirmed. 


SECTION  6.— SATISFACTION  OF  JUDGMENT 


Ex  parte  DRAKE. 

In  re  WARE. 
(High  Court  of  Justice,  Chancery  Division,  1877.    1>.  R.  5  Ch.  Div.  S66.) 

This  was  an  appeal  from  a  decision  of  Mr.  Registrar  Pepys,  sitting 
as  Chief  Judge  in  Bankruptcy. 

In  March,  1875,  James  Ware,  a  carrier  and  carman,  hired  a  grey 
mare  of  Daniel  Drake.  He  neglected  to  return  the  mare  when  requir- 
ed by  Drake  to  do  so,  and  in  May,  1876,  Drake  commenced  an  action 
in  the  Exchequer  Division  against  Ware  for  the  recovery  of  the  mare. 
The  action  was  tried  on  the  2d  of  December,  1876,  when  a  verdict  was 
found  for  the  plaintiff  for  £60.,  the  value  of  the  mare,  such  amount  to 
be  reduced  to  Is.  if  the  mare  was  returned  to  the  plaintiff  on  the  4th  of 
December,  and  £25.  damages  for  the  wrongful  detention.     And  the 


228  ACQUISITION   OF   OWNEUSHIP  (Ch.  i 

Judge  directed  judgment  for  £85.,  and  the  costs  of  the  action.  Tlie  de- 
fendant did  not  return  the  mare,  and  on  the  6th  of  December,  the 
plaintiff's  solicitor's  bill  of  costs  was  taxed  at  £70.  10s.  2d.  At  an 
earlier  hour  on  the  same  day  Ware  had  filed  a  liquidation  petition,  and 
notice  of  the  petition  was  given  to  the  plaintiff's  solicitor  by  Ware's 
solicitor  when  they  attended  the  taxation.  Un  the  same  day  Drake 
signed  judgment  in  the  action  for  £155.  10s.  2d.  and  issued  and 
lodged  with  the  sheriff  of  Middlesex  a  writ  of  fi.  fa.  on  the  judg- 
ment. On  the  7th  of  December  the  sheriff  levied  on  the  goods  of 
Ware,  not  including  the  mare.  An  order  was  afterwards  made  by  the 
Court  of  Bankruptcy  restraining  the  proceedings  under  the  execution, 
and  the  sheriff'  withdrew.  The  first  meeting  of  the  creditors  was  held 
on  the  5th  of  January,  1877,  when  Drake  tendered  a  proof.  His  affi- 
davit stated  the  verdict  in  the  action,  the  signing  of  the  judgment,  the 
taxation  of  the  costs,  and  that  the  mare  had  not  been  delivered  to  him, 
nor  the  £85.,  or  the  amount  of  the  taxed  costs  paid  to  him.  The  affi- 
davit went  on  to  state  that  Ware  was  also,  at  the  date  of  the  institu- 
tion of  the  liquidation  proceedings,  and  still  was,  indebted  to  him  in 
the  sum  of  £264.  for  hire  of  the  mare  from  the  25th  of  March,  1875, 
to  the  2d  of  December,  1876,  for  which  sum  he  had  not  received  any 
satisfaction  or  security.  He  further  said  that  he  had  not  received  any 
satisfaction  or  security  for  the  amount  recovered  by  him  under  the 
judgment,  except  so  far  as  the  same  was  secured  by  the  goods  levied 
upon  by  the  sheriff.  *  *  *  The  proof  afterwards  was  objected  to 
by  the  trustee  in  the  liquidation,  as  to  the  £264.,  on  the  ground  that  no 
contract  for  hire  was  ever  entered  into  by  the  debtor.  On  the  10th  of 
January,  1877,  Drake  applied  to  the  Court  in  the  liquidation  for  an 
order  that  the  trustee  should  deliver  to  him  the  goods  which  had  been 
seized  by  the  sheriff,  or  that  he  should,  out  of  the  first  assets  belonging 
to  the  estate  of  Ware  which  should  come  to  his  hands,  pay  to  Drake 
the  £155.  10s.  2d.  due  to  him  under  the  judgment,  with  interest  until 
payment.  This  motion  was  by  consent  turned  into  a  special  case.  Up- 
on the  hearing  of  the  case  on  the  13th  of  February,  the  Registrar  de- 
cided that  Drake  was  not  entitled  to  any  relief.  At  this  time  Drake  did 
not  know  where  the  mare  was.  But  on  the  13th  of  March  he  acciden- 
tally discovered  her  in  the  possession  of  the  debtor,  whose  servant  was 
driving  her.  The  debtor  was,  with  the  permission  of  the  trustee,  using 
her  in  his  business.  Drake  thereupon  instructed  the  sheriff  to  seize  the 
mare  under  the  writ  of  fi.  fa.  and  the  sheriff  on  the  same  dav  forcibly 
removed  her  from  the  debtor's  possession.  On  the  14th  of  March  the 
trustee  obtained  in  the  Court  of  Bankruptcy  an  interim  injunction  re- 
straining the  sheriff'  and  Drake  from  selling  the  mare,  and  on  the  27th 
of  March  the  Registrar  made  this  injunction  perpetual,  and  ordered 
that  the  mare  should  be  forthwith  delivered  up  to  the  trustee. 
Drake  appealed. 


Sec.  6)  SATISIACTION    OF   JUDGMENT  229 

JessEL,  M.  R.°°  *  *  *  The  first  question  is,  in  whom  was  the 
property  in  the  mare  when  she  was  seized  by  the  sheriff's  officer?  I 
am  of  opinion  that,  after  the  decision  in  Brinsmead  v.  Harrison,  L.  R. 
7  C.  P.  547,  we  are  bound  to  hold  tliat  the  property  was  never  divested 
from  Drake.  He  had  the  property  unless  something  which  he  did  un- 
der the  judgment  divested  it  from  him.  It  is  clear  that  the  judgment 
itself  did  not  divest  the  property.  Did  the  execution  divest  it?  Upon 
that  question  the  authority  of  Brinsmead  v.  Harrison  is  distinctly  in 
point.  It  shews  that  the  execution  does  not  divest  the  property  unless 
there  is  satisfaction  of  the  judgment.  There  are  several  ways  in  which 
an  execution  might  produce  nothing.  One  way  would  be  if  the  amount 
produced  by  the  sale  of  the  goods  seized  did  not  cover  the  expenses  of 
the  sale.  Another  way  would  be  if,  as  happened  in  the  present  case, 
there  was  a  prior  act  of  bankruptcy  which  nullified  the  execution.  The 
judgments  in  Brinsmead  v.  Harrison,  and  especially  that  of  Mr.  Jus- 
tice Willes,  shew  that  the  theory  of  the  judgment  in  an  action  of  detin- 
ue is  that  it  is  a  kind  of  involuntary  sale  of  the  plaintiff's  goods  to  the 
defendant.  The  plaintiff  wants  to  get  his  goods  back,  and  the  court 
gives  him  the  next  best  thing,  that  is,  the  value  of  the  goods.  If  he 
does  not  get  that  value,  then  he  does  not  lose  his  property  in  the  goods. 
On  the  appeal  to  the  Exchequer  Chamber,  in  Brinsmead  v.  Harrison, 
the  only  two  Judges  who  expressed  any  opinion  on  the  point  confirmed 
the  view  of  Mr.  Justice  Willes.  Mr.  Justice  Blackburn  said  (L.  R.  7  C. 
P.  554) :  "I  observe  that  the  Court  of  Common  Pleas,  in  their  judg- 
ment upon  the  demurrer  to  the  new  assignment,  which  is  not  now  be- 
fore us,  held  that  by  the  recovery  in  the  first  action  without  satisfac- 
tion the  property  in  the  chattel  did  not  pass.  I  should  be  inclined  to 
agree  to  this,  but  it  is  unnecessarv'  to  express  an  opinion  it."  And  Mr. 
Justice  Lush  said  (L.  R.  7  C.  P.  555) :  "The  Judges  who  decided  those 
American  cases  seem  to  have  thought  that,  by  holding  that  recovery 
against  one  of  two  wrongdoers  was  a  bar  to  an  action  against  the  other, 
they  would  be  deciding  that  the  property  in  the  chattel  passed  by  the 
recovery ;  but  I  do  not  think  that  by  any  means  follows ;  and,  as  at 
present  advised,  I  am  prepared  to  adhere  to  the  judgment  of  the  Court 
below  upon  both  points."  Therefore  one  Judge  entirely  agreed  with 
Mr.  Justice  Willes,  and  the  other  was  inclined  to  agree  with  him.  Un- 
der these  circumstances  we  must  consider  it  established  that  the  prop- 
erty in  the  mare  remained  in  the  plaintiff  Drake.  That  being  so,  he  had 
a  right  to  obtain  possession  of  his  property  either  by  taking  it  peace- 
ably or  by  means  of  proper  legal  process.  As  I  understand  the  provi- 
sions of  section  78  of  the  Common  Law  Procedure  Act,  1854,  the 
plaintiff  (assuming  that  there  had  been  no  liquidation  petition),  if  the 
value  of  the  mare  had  not  been  paid  to  him  under  the  judgment  and  if 

00  The  statement  of  f.icts  is  abridged  and  a  rart  of  the  opinion  of  Jessel, 
11.  E.,  and  the  concurring  opinion  of  James,  L.  J.,  are  omitted. 


230  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

he  could  have  found  out  where  the  mare  was,  might  have  appHed  to  a 
Judge  at  Chambers  for  an  order  that  the  defendant  should  deliver  her 
to  him.  The  liquidation  petition  prevented  him  from  doing  that,  but 
the  power  of  the  Judge  at  Chambers  became  then  vested  in  the  Court 
of  Bankruptcy,  which  could  do  complete  justice  in  the  matter.  The 
plaintiff  Drake,  therefore,  if  he  had  applied  to  the  Court  of  Bank- 
ruptcy, might  have  obtained  an  order  for  the  delivery  of  the  mare  to 
him.  But  it  is  said  tliat  he  cannot  do  this  now,  because  he  is  bound  by 
the  proof  which  he  made  in  the  liquidation.  If  that  means  anything  it 
means  this,  that  the  plaintiff  has  deliberately  elected  to  take  his  chance 
of  a  dividend  in  the  liquidation  in  substitution  for  his  right  to  recover 
possession  of  his  mare.  It  would  be  very  extraordinary  if  he  had  done 
this,  but  of  course  it  is  possible  that  he  may  have  done  it,  and  we  must 
examine  what  he  actually  did  in  order  to  see  whether  he  has  really 
made  this  election.  He  has  done  nothing  beyond  bringing  in  a  proof. 
The  proof  has  not  been  formally  admitted  by  the  trustee,  though,  on 
the  other  hand,  it  has  not  been  rejected.  But,  before  a  reasonable  time 
had  elapsed  after  the  proof  was  taken  in,  the  plaintiff  made  a  claim 
to  be  paid  in  full  the  whole  amount  of  his  judgment,  that  is,  he  made  a 
claim  for  the  full  value  of  the  chattel.  This  was  a  proceeding  wholly 
inconsistent  with  the  notion  that  he  had  finally  elected  to  take  the  divi- 
dend instead  of  the  mare,  and  I  am  of  opinion  that  he  had  made  no 
such  election.  The  result  is  that  the  order  of  the  registrar  must  be  dis- 
charged and  we  must  now  make  the  order,  etc.,  the  order  which  he 
ought  to  have  made,  that  is,  that  the  mare  be  delivered  to  or  retained 
by  tlie  appellant.  But,  inasmuch  as  his  proceedings  in  directing  the 
sheriff  to  seize  the  mare  were  not  such  as  can  be  viewed  with  approba- 
tion by  the  Court,  the  proper  order  as  to  costs  will  be  that  there  be  no 
costs  on  either  side,  either  of  the  hearing  before  the  registrar  or  of  the 
appeal.*^ 


MILLER  V.  HYDE. 

(Supreme  Judicial  Court  of  Massachusetts,  1894.     161  Mass.  472.  37  N.  E. 
760,  25  L.  R.  A.  42,  42  Am.  St.  Rep.  424.) 

[Replevin  of  a  horse;    submitted  on  agreed  statement  of  fact] 
The  horse  in  question  was  purchased  in  July,  1890,  by  Herbert  W. 
Miller,  a  resident  of  Boston,  through  his  agent,  George  Bryden,  of 
Hartford,  in  the  State  of  Connecticut,  who  thereafter  kept  it  for  him 

61  A.  pledged  bonds  with  B.  to  secure  a  debt.  B.  converted  by  wrongfully 
repledging  to  C.  A.  brought  trover  against  B.  for  the  difference  between  the 
value  of  the  bonds  and  the  debt,  and  got  judgment,  which  was  not  satisfied. 
B.  became  bankrupt,  and  recovered  part  of  the  bonds  from  C.  Held,  A.  can- 
not replevy  these  bonds  from  B.  Deitz  v.  Field,  10  App.  Div.  42.5,  41  N.  Y. 
Supp.  1087  (1896).  Compare  Union  Pac.  Ry.  Co.  v.  Schiff  (C.  C.)  78  Fed.  216 
(1897). 


Sec.  6)  SATISFACTION    OF   JUDGMENT  231 

in  Hartford.  INIiller  died  in  September,  1890,  and  in  the  following 
November  the  plaintiff,  who  was  his  widow,  having  been  appointed 
administratrix  of  his  estate,  demanded  the  horse  of  Bryden,  who  re- 
fused to  deliver  it  to  her,  claiming  to  own  a  half  interest  therein.  In 
March,  1891,  Bryden  sold  and  delivered  the  horse  as  his  own  prop- 
erty to  Joseph  C.  Davenport  and  Ada  L-  Hyde,  both  residents  of  Con- 
necticut. 

Ancillary  administration  was  subsequently  granted  to  the  plaintiff 
in  Connecticut,  and  in  November,  1891,  she  brought  an  action  in  that 
State  against  Bryden,  Davenport,  E.  A.  Hyde,  and  one  Shillinglaw, 
for  the  conversion  of  the  horse,  which  was  in  the  possession  of  the 
three  last  named  defendants,  and  attached  the  horse  upon  mesne  pro- 
cess. She  recovered  judgment  against  Bryden  only,  on  which  execu- 
tion was  issued  and  delivered  to  an  officer,  who,  after  an  ineffectual 
demand  on  Bryden  for  its  payment,  levied  on  the  horse  and  adver- 
tised it  for  sale,  but  before  he  had  sold  it  it  was  replevied  from  him 
by  Davenport. 

In  August,  1892,  Davenport  intrusted  the  horse  to  the  defendant, 
who  brought  it  into  this  Commonwealth,  where  it  was  replevied  by 
the  plaintiff.  When  this  action  was  begun,  the  judgment  recovered 
in  trover  against  Bryden,  who  was  financially  worthless,  remained  un- 
satisfied, and  the  replevin  suit  of  Davenport  against  the  officer  was 
still  pending  in  Connecticut.     *     *     * 

Barker,  J."-  The  plaintiff  may  maintain  replevin  if  she  is  the 
owner  of  the  horse,  and  if  she  is  not  estopped  from  asserting  her  own- 
ership against  the  defendant.  As  administratrix  of  her  husband's  es- 
tate, she  was  the  owner  when  she  brought  trover  in  Connecticut  against 
Bryden,  the  bailee,  who  had  wrongfully  usurped  dominion,  and  sold 
and  delivered  the  horse  to  Davenport.  As  the  horse  was  in  Connecti- 
cut and  the  action  of  trover  was  in  the  courts  of  that  State,  the  ef- 
fect of  the  suit  upon  her  title  would  be  determined  by  the  law  of  the 
forum.  But  as  the  law  of  Connecticut  is  not  stated  as  an  agreed  fact, 
we  must  apply  our  own.  Whether  a  plaintiff's  title  to  the  chattel  is 
transferred  upon  the  entry  in  his  favor  of  judgment  in  trover  has  not 
been  decided  by  this  court.  Assuming  that  in  early  times  title  to  the 
chattel  was  transferred  to  the  defendant  upon  the  entry  of  judgment 
for  the  plaintiff  in  trover,  at  present  a  different  doctrine  is  generally 
applied,  and  it  is  now  commonly  held  that  title  is  not  transferred  by 
the  entry  of  judgment,  but  remains  in  the  plaintiff  until  he  has  re- 
ceived actual  satisfaction.  See  Atwater  v.  Tupper,  45  Conn.  144,  29 
Am.  Rep.  674;  Turner  v.  Brock,  6  Heisk.  (Tenn.)  50;  Lovejoy  v. 
Murray,  3  Wall.  1,  18  L.  Ed.  129;  Ex  parte  Drake,  5  Ch.  D.  866: 
Brinsmead  v.  Harrison,  L.  R.  7  C.  P.  547 ;    1  Greenl.  Ev.  §  533,  and 


«2  The  statement  of  facts  Is  abridged  and  parts  of  the  opinious  of  Barker, 
Holmes,  and  Knowlton,  JJ.,  are  omitted. 


232  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

note;  and  the  law  has  been  commonly  so  administered  by  our  own 
trial  courts.  We  tliink  this  doctrine  better  calculated  to  do  justice 
and  see  no  reason  why  we  should  not  hold  it  to  be  law. 

Whenever  the  title  passes,  as  there  has  been  no  sale  or  gift,  and  no 
title  by  prescription  or  by  pKJSsession  taken  upon  abandonment  by  the 
true  owner,  the  transfer  is  made  by  his  inferred  election  to  recognize 
as  an  absolute  ownership  the  qualified  dominion  wrongfully  assumed 
by  the  defendant.  The  true  owner  makes  no  release  in  terms  and  no 
election  in  terms  to  relinquish  his  title;  but  the  election  is  inferred  by 
the  law,  to  prevent  injustice.  Formerly  this  election  was  inferred 
when  judgment  for  the  plaintiff  was  entered,  because  his  damages, 
measured  by  the  value  of  the  chattel  and  interest,  were  then  author- 
itatively assessed,  and  the  judgment  brought  to  his  aid  the  power  of 
the  court  to  enforce  its  collection  out  of  the  wrongdoer's  estate  or  by 
taking  his  person ;  and  this  was  deemed  enough  to  insure  actual  satis- 
faction. If  so,  it  was  just  to  infer  that  when  he  accepted  these  rights 
he  elected  to  relinquish  to  the  wrongdoer  the  full  ownership  of  the 
chattel.  An  election  was  not  inferred  when  the  suit  was  commenced, 
although  the  plaintiff  then  alleged  that  the  defendant  had  converted 
the  chattel,  and  although  the  writ  might  contain  a  capias,  because,  ow- 
ing to  the  uncertainties  attendant  upon  the  pursuit  of  remedies  by  ac- 
tion, it  was  not  just  to  infer  such  an  election  while  ultimate  satisfac- 
tion for  the  wrong  was  but  problematical.  Forms  of  action  are  a 
means  of  administering  justice,  rather  than  an  end  in  themselves. 
When  it  is  seen  that  the  practical  result  of  a  form  of  action  is  a  fail- 
ure of  justice,  the  courts  will  make  such  changes  as  are  necessary  to 
do  justice.  If  the  entry  of  judgment  in  trover  usually  gave  the  judg- 
ment creditor  but  an  empty  right,  it  was  not  just  to  infer  that  upon 
acquiring  such  a  right  he  relinquished  the  ownership  of  the  chattel,  and 
the  rule  that  required  the  inference  to  be  then  drawn  was  properly 
changed.  The  ground  for  inferring  such  an  election  was  that  upon 
the  entry  of  judgment  he  acquired  an  effectual  right  in  lieu  of  his 
property  and  the  doctrine  that  without  some  actual  satisfaction  the 
inference  of  an  election  would  not  be  drawn  has  been  shown  bv  e.K- 
perience  to  be  necessary  to  the  administration  of  justice,  and  has  been 
generally  acted  upon,  and  the  modern  rule  adopted  that  the  plaintiff's 
title  is  not  transferred  by  the  entry  of  judgment,  but  is  transferred 
by  actual  satisfaction.  Trover  is  but  a  tentative  attempt  to  obtain  jus- 
tice for  a  wrong,  and  until  pursued  so  far  that  it  has  given  actual  satis- 
faction ought  not  to  bar  the  plaintiff  from  asserting  his  title.  *  *  * 
\\'hether  the  holder  of  an  unsatisfied  judgment  in  trover  can  without 
a  fresh  taking  maintain  replevin  against  the  same  defendant,  or  is  re- 
stricted to  one  action  against  the  same  person  for  a  single  tort,  we  do 
not  now  decide.  See  Bennett  v.  Hood,  1  Allen,  47,  79  Am.  Dec.  705 ; 
Trask  v.  Hartford  &  New  Haven  Railroad,  2  Allen,  331 ;  Bliss  v. 
New  York  Central  &  Hudson  River  Railroad,  160  Mass.  447,  36  N. 


Sec.  6)  SATISFACTION    OF   JUDGMENT  233 

E.  65,  39  Am.  St.  Rep.  504.  If  he  is  so  restricted,  it  is  not  because 
the  ownership  of  the  chattel  has  been  transferred. 

But  the  present  plaintiff  has  done  more  than  to  take  judgment  in 
trover.  In  her  action  of  trover  she  caused  the  horse  to  be  attached 
upon  mesne  process,  and  since  obtaining  judgment  she  has  caused  the 
horse  to  be  seized  as  property  of  Bryden  in  execution  on  the  judg- 
ment as  his  property,  and  to  be  kept  and  offered  for  sale  on  the  execu- 
tion until,  as  it  was  about  to  be  so  sold,  it  was  replevied,  by  Davenport 
from  the  officer  in  a  suit  between  them  which  is  still  pending  in  Con- 
necticut. That  suit  is  not  a  bar  to  this  action,  because  it  is  not  be- 
tween the  same  parties.  White  v.  Dolliver,  113  Mass.  400,  18  Am. 
Rep.  502;  Newell  v.  Newton,  10  Pick.  470.  But  we  must  still  inquire 
whether,  assuming  that  the  plaintiff's  property  in  the  horse  was  not 
transferred  by  her  judgment  in  trover,  it  was  transferred  by  that  judg- 
ment taken  in  connection  with  the  facts  of  the  attachment  and  levy, 
and  also  whether  she  is  estopped  by  the  attachment  and  the  levy  from 
asserting  her  title  in  this  action. 

In  the  first  place,  the  doctrine  that  a  mortgagee  of  personalty  who 
attaches  the  mortgaged  goods  on  a  writ  against  the  mortgagor  cannot 
afterwards  enforce  his  mortgage,  is  not  in  point.  The  mortgagee  is 
not  the  owner,  but  has  merely  a  lien,  and  may  well  be  held  to  relin- 
quish that  lien  when  by  the  attachment  he  establishes  another.  But  if 
the  plaintiff  has  actual  ownership,  and  thus  the  full  right  to  do  with 
his  own  property  as  he  may  choose,  merely  procuring  it  to  be  attached 
on  mesne  process  or  seized  on  execution  as  the  property  of  another 
does  not  work  a  change  of  ownership.  The  owner  does  not  sell  or 
give  away  his  goods.  In  cases  which  are  likely  to  occasion  such  con- 
duct, there  usually  is,  as  in  the  present  case,  a  disputed  title;  and  it 
is  with  the  hope  of  avoiding  litigation  over  it  that  the  real  owner  con- 
sents that  the  chattel  shall  for  a  special  purpose  only  be  treated  as  the 
property  of  another.  This  is  "consistent  with  an  intention  ultimately 
to  assert  title  should  circumstances  render  it  desirable  for  him  so  to 
do" ;  and  he  may  well  wait  to  see  the  issue,  which  may  be  such  as  to 
avoid  the  litigation  of  the  question  of  title.  See  Mackav  v.  Holland, 
4  Mete.  69,  74;  Dewey  v.  Field,  4  Mete.  381,  384,  38  Am.  Dec.  376, 
Johns  V.  Church,  12  Pick.  557,  23  Am.  Dec.  651;  Bursley  v.  Ham- 
ilton, 15  Pick.  40,  43,  25  Am.  Dec.  423;  Edmunds  v.  Hill,  133  Mass. 
445,  446.  Nor  is  there  any  good  reason  why  such  a  use  of  his  own 
property  by  a  plaintiff'  in  trover  should  be  held  to  devest  him  of  his 
ownership  when  it  would  not  have  that  effect  in  other  forms  of  ac- 
tion. In  trover  he  is  in  legal  eiifect  asserting  by  his  suit  that  the  title 
is  and  will  remain  in  himself  until  he  receives  satisfaction  on  a  judg- 
ment, and  his  subjection  of  the  chattel  to  attachment  or  to  seizure  on 
execution  is  simply  a  use  which  he  chooses  to  make  of  his  own  prop- 
erty which  does  not  devest  him  of  title  or  hamper  him  in  the  subse- 


234  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

quent  assertion  of  his  ownership  except  by  the  rules  of  estop- 
pel.    *     *     * 

Upon  the  question  of  estoppel,  it  is  material  to  the  decision  of  the 
present  case  to  consider  only  whether  she  is  estopped  as  to  the  pres- 
ent defendant  or  his  principal  Davenport.  Whether  she  has  rendered 
Bryden,  or  the  officer  who  made  the  attachment  or  the  levy  in  the  Bry- 
den  suit,  liable  to  costs,  expenses,  or  chance  of  loss,  is  not  material 
upon  the  question  whether  she  is  barred  by  the  doctrines  of  estoppel 
from  maintaining  the  present  action.  She  is  now  prosecuting  one  of 
several  successive  wrongdoers  for  a  fresh  interference  with  the  pos- 
session of  her  property;  and  neither  the  present  defendant,  Hyde,  nor 
Davenport,  for  whom  he  claims  to  be  acting  as  agent,  has  done  or 
suffered  anything,  or  been  put  to  any  liability  by  reason  of  which  the 
plaintiff'  should  be  estopped  from  asserting  her  title.  Upon  the  facts, 
Davenport  in  taking  the  horse  in  replevin  did  not  rely  upon  the  attach- 
ment or  levy,  but  acted  in  denial  of  their  validity ;  and  Hyde  is  not 
shown  to  have  been  influenced  by  them  in  consenting  to  become  Dav- 
enp>ort's  agent  in  keeping  the  horse,  or  in  any  manner.  Neither  Hyde 
nor  Davenport  is  shown  to  have  changed  his  position  or  course  of 
conduct  relying  upon  the  plaintiff's  action  in  causing  the  attachment 
or  the  levy,  and  the  plaintiff'  is  not  estopped  by  it  from  maintaining 
the  present  action.  In  the  opinion  of  a  majority  of  the  court,  the  re- 
sult must  be. 

Judgment  set  aside,  and  judgment  for  the  plaintiff  ordered. °' 

Holmes,  J.  As  the  judges  are  not  unanimous  it  becomes  necessary 
for  me  to  state  my  views,  which  otherwise  I  should  not  do,  as  they 
have  not  persuaded  my  brethren. 

I  am  of  opinion  that  the  plaintiff  ought  to  be  barred  in  this  action 
by  her  recovery  of  judgment  in  trover  for  the  same  horse.  I  am 
aware  that  the  doctrine  that  title  passes  by  judgment  without  satisfac- 
tion is  not  in  fashion,  but  I  never  have  been  able  to  understand  any 
other;  It  always  has  seemed  to  me  that  one  whose  property  has  been 
converted  has  an  election  between  two  courses,  that  he  may  have  the 
thing  back  or  may  have  its  value  in  damages,  but  that  he  cannot  have 
both ;    that  when  he  chooses  one  he  necessarily  gives  up  the  other, 

63  The  obtaining  of  a  judgment  for  the  value  of  the  converted  chattel  is 
no  bar  to  an  action:  As  against  a  subsequent  convertor,  Spivey  v.  Morris,  IS 
Ala.  254,  52  Am.  Dec.  224  (IJJoO) ;  Dow  v.  King,  52  Ark.  282,  12  S.  W.  577 
(1889) ;  Atwater  v.  Tupper,  45  Conn.  144,  29  Am.  Rep.  674  (1877) :  Jolm  A. 
Tolman  Co.  v.  Waite,  119  Mich.  341,  78  N.  W.  124,  75  Am.  St.  Rep.  400  (1899) ; 
Matthews  v.  Menedger,  2  McLean,  145,  Fed.  Cas.  No.  9,289  (1840) ;  as  against 
a  joint  convertor,  Elliot  v.  Hayden,  104  Mass.  ISO  (1870) ;  Sanderson  v.  Cald- 
well, 2  Aikens  (Vt.)  195  (1826) ;  contra,  Hunt  v.  Bates,  7  R.  I.  217,  82  Am. 
Dec.  592  (1862).     Compare  Brinsmead  v.  Harrison,  L.  R.  6  C.  P.  584  (1871). 

B.,  C.  and  D.  converted  A.'s  chattel.  A.  sued  B.  and  C.  in  an  action  sound- 
ing In  contract  and  got  judgment  for  the  value  of  tlie  chattel.  Held,  A.  cannot 
bring  an  action  against  D.  for  the  conversion  of  the  chattel  based  on  the  same 
transaction.  Terry  v.  Jlunger,  121  N.  Y.  161,  24  N.  E.  272,  8  L.  R.  A.  216,  IS 
Am.  St.  Rep.  803  (1890). 


Sec.  6)  SATISFACTION   OF  JUDGMENT  235 

and  that  by  taking  a  judgment  for  the  value  he  does  choose  one  con- 
clusively. He  cannot  have  a  right  to  the  value  of  the  thing,  effectual 
or  ineffectual,  and  a  right  to  the  thing  at  the  same  time.  The  defend- 
ant is  estopped  by  the  judgment  to  deny  the  plaintiff's  right  to  the 
value  of  the  thing.  Usually  estoppels  by  judgment  are  mutual.  It 
would  seem  to  follow  that  the  plaintiff  also  is  estopped  to  deny  his 
right  to  the  value  of  the  thing,  and  therefore  is  estopped  to  set  up  an 
inconsistent  claim.  In  general  an  election  is  determined  by  judgment. 
Butler  V.  Hildreth,  5  Mete.  49;  Bailey  v.  Hervey,  135  Mass.  172,  174; 
Goodyear  Dental  Vulcanite  Co.  v.  Caduc,  144  Mass.  85,  86,  10  N.  E. 
483;  Raphael  v.  Reinstein,  154  Mass.  178,  179,  28  N.  E.  141.  I  know 
of  no  reason  why  a  judgment  should  be  less  conclusive  in  this  case 
than  any  other.  Of  course,  I  am  speaking  of  a  judgment  for  the  value 
of  the  chattel,  not  of  one  giving  nominal  damages  for  the  taking."* 
The  argument  from  election  is  adopted  in  White  v.  Philbrick,  5  Greenl. 
(5  Me.)  147,  150,  17  Am.  Dec.  214,  which  so  far  as  I  know  is  still  the 
law  of  Maine,  notwithstanding  the  remark  in  Murray  v.  Lovejoy,  2 
Cliff.  191,  198,  Fed.  Cas.  No.  9,963.  See  also  Shaw,  C.  J.,  in  Butler  v. 
Hildreth,  5  Mete.  49,  53. 

The  most  conspicuous  cases  which  have  taken  a  different  view  speak 
of  the  hardship  of  a  man's  losing  his  property  without  being  paid 
for  it,  and  sometimes  cite  the  dictum  in  Jenkins,  4th  Cent.,  Case  88. 
Solutio  pretii  emptionis  loco  habetur,  which  is  dogma,  not  reasoning, 
or  if  reasoning,  is  based  on  the  false  analogy  of  a  sale;  but  they  leave 
the  argument  which  I  have  stated  unanswered,  not,  as  I  think,  because 
the  judges  deemed  it  unworthy  of  answer  or  met  by  paramount  con- 
siderations of  policy,  but  because  they  did  not  have  either  that  or  a 
clue  to  the  early  cases  before  their  mind.  Lovejoy  y.  I\Iurray,  3  Wall. 
1,  17,  18  L.  Ed.  129;  Brinsmead  v.  Harrison,  L.  R.  6  C.  P.  584,  587; 
S.  C.  L.  R.  7  C.  P.  547,  554.  It  is  not  the  practice  of  the  English 
judges  to  overrule  the  common  law  because  they  disapprove  it,  and 
to  do  so  without  discussion.  In  Brinsmead  v.  Harrison,  Mr.  Justice 
Willes  thought  he  was  proving  that  the  common  law  always  had  been 
in  accord  with  his  position.  So  far  as  the  question  of  policy  goes,  it 
does  not  seem  to  me  that  the  possibility — it  is  only  the  possibility — of 
an  election  turning  out  to  have  been  unwise,  is  a  sufficient  reason  for 
breaking  in  upon  a  principle  which  must  be  admitted  to  be  sound  on 
the  whole,  and  for  overthrowing  the  doctrine  of  the  common  law  by 
a  judicial  fiat.  I  am  not  informed  of  any  statistics  which  establish 
that  judgments  for  money  usually  give  the  judgment  creditor  only  an 
empty  right. 

That  the  view  which  I  hold  is  the  view  of  the  common  law  I  think 
may  be  proved  by  considering  what  was  the  theory  on  which  the  reme- 
dies of  trespass  and  replevin  were  given.    In  Y.  B.  19  Hen.  VI,  65, 

6*  See  Lacon  v.  Barnard,  Cro.  Car.  35  (1623) ;  Barb  v.  Fish,  8  Blackf.  (Ind.) 
48  (1846). 


236  ACQUISITION  OF  OWNEUSIIIP  (Ch.  4 

pi.  5,  Newton  says:  "If  you  had  taken  my  chattels  it  is  at  my  choice 
to  sue  replevin,  which  shows  that  the  property  is  in  me,  or  to  sue  a 
writ  of  trespass,  which  shows  that  the  property  is  in  the  taker ;  and 
so  it  is  at  my  will  to  waive  the  property  or  not."  In  6  Hen.  VII,  8, 
pi.  4,  Vavisor  uses  similar  language,  and  adds,  "And  so  it  is  of  goods 
taken,  one  may  divest  the  property  out  of  himself,  if  he  will,  by  pro- 
ceedings in  trespass,  or  demand  property  by  replevin  or  writ  of  det- 
inue," if  he  prefers.  There  is  no  doubt  that  the  old  law  was  that 
replevin  affirms  prooerty  in  the  plaintiff  and  trespass  disaffirms  it, 
and  that  the  plaintiff  has  election.  Bro.  Abr.  Trespass,  pi.  134;  18 
Vin.  Abr.  69  (E) ;  Anderson  and  Warberton,  JJ.,  in  Bishop  v.  Mon- 
tague, Cro.  Eliz.  824.  The  proposition  is  made  clearer  when  it 
is  remembered  that  a  tortious  possession,  at  least  if  not  felonious,  car- 
ried with  it  a  title  by  wrong  in  the  case  of  chattels  as  well  as  in  the 
case  of  a  disseisin  of  land,  as  appears  from  the  page  of  Viner  just 
cited,  and  as  has  been  shown  more  fully  by  the  learned  researches 
of  Mr.  Ames  and  Mr.  Maitland,  3  Harv.  Law  Rev.  23,  326.  See  1 
Law  Quarterly  Rev.  324.  I  do  not  regard  that  as  a  necessary  doc- 
trine, or  as  the  law  of  Massachusetts,  but  it  was  the  common  law,  and 
it  fixed  the  relations  of  trespass  and  replevin  to  each  other.  Trespass, 
and  on  the  same  principle  trover,  proceed  on  the  footing  of  affirming 
property  in  the  defendant,  and  of  ratifying  the  act  of  the  defendant 
which  already  has  affirmed  it.  I  do  not  see  on  what  other  ground  a 
judgment  for  the  value  can  be  justified.  If  the  title  still  is  in  doubt, 
or  remains  in  the  plaintiff,  the  defendant  ought  not  to  be  charged  for 
anything  but  the  tortious  taking.  Again,  cannot  the  plaintiff  take  the 
converted  chattel  on  execution?  And  on  what  principle  can  he  do  so 
if  it  does  not  yet  belong  to  the  defendant?     *     *     * 

If  I  am  right  in  my  general  views,  they  apply  to  this  case.  The 
plaintiff  recovered  her  judgment  in  Connecticut,  to  be  sure,  as  ancil- 
lary administrator  there,  but  the  horse  was  there,  and  she  was  entitled 
to  it  there,  so  that  her  judgment  recovered  there  passed  the  title.  Like 
any  other  transfer  of  a  chattel  valid  in  the  place  where  it  was  made 
and  where  the  chattel  was  situated,  it  will  be  respected  elsewhere.  The 
Connecticut  law  was  not  put  in  evidence,  and  therefore  we  must  pre- 
sume that  a  judgment  there  has  whatever  effect  we  attribute  to  it  on 
the  principles  of  the  common  law.  It  is  not  argued  that  the  defend- 
ant stands  any  worse  than  Bryden,  against  whom  the  judgment  was 
recovered  and  from  whom  the  defendant's  bailor  bought  horse. "^ 

Knowlton,  J.  I  am  of  opinion  that  the  judgment  in  this  case  should 
be  for  the  defendant.     It  is  a  general  rule  of  law  that  when  one  is 

85  A.  recovered  judgment  against  B.  for  the  value  of  a  slave  converted  by 
B.  Thereupon  C,  a  creditor  (rf  B.,  levied  upon  the  slave  as  B.'s  propert.v. 
Held,  A.  cannot  compel  a  redelivery  of  the  slave  by  C.  Foreman  v.  Xeilsou, 
2  Rich.  Eq.  (S.  C.)  287  (1S46).  See,  also,  Norrill  v.  Corley,  2  Rich.  Eq.  (S.  C.) 
2S8,  note  (1828) ;   Rogers  v.  Moore,  Rice  (S.  O.)  60  (1838). 


Sec.  ())  SATISFACTION    OF   JUDGMENT  237 

entitled  to  either  of  two  inconsistent  remedies  for  a  wrong  done  him, 
the  pursuit  of  one  of  them  so  far  as  to  affect  the  interests  of  the  other 
party  is  a  conclusive  election,  and  a  waiver  of  the  other.  *  *  * 
The  principal  question  in  cases  of  this  kind  is  at  what  stage  of  the  pro- 
ceedings the  owner  shall  be  deemed  to  have  made  an  election  that 
binds  him.  On  principle,  and  as  a  general  rule,  he  should  be  bound  by 
the  election  he  makes,  if  in  making  it  he  goes  so  far  as  to  affect  the 
rights  or  interests  of  the  other  party.  It  would  be  unjust,  when  he 
may  proceed  only  in  one  or  the  other  of  two  opposite  directions,  that 
he  should  go  forward  in  one  direction  in  such  a  way  as  materially  to  af- 
fect the  other  party,  and  then  turn  backward  and  go  on  in  the  other, 
and  compel  his  adversary  to  satisfy  him  in  a  different  way.     *     *     * 

In  taking  judgment  he  merely  puts  in  form  and  settles  by  adjudica- 
tion a  claim  for  the  value  of  the  property,  to  which  he  was  entitled 
from  the  beginning  if  he  chose  to  enforce  it.  He  does  not  otherwise 
disturb  the  defendant  or  his  property,  and,  while  it  would  doubtless 
be  more  logical  to  say  that  he  is  concluded  by  his  election  as  soon  as 
he  has  recovered  judgment,  it  is  perhaps  a  practical  rule  which  will 
more  generally  work  out  justice  to  hold  that  if  he  does  nothing  more 
to  collect  the  money,  and  if  he  proceeds  within  a  reasonable  time,  he 
may  still  take  the  property  as  his  own.  But,  if  having  fixed  the  lia- 
bility of  the  defendant  for  a  debt  by  taking  judgment,  he  says  by  his 
conduct  that  he  intends  to  collect  the  debt,  and  does  that  which  af- 
fects the  interests  of  the  defendant  in  that  particular,  he  should  be 
deemed  to  have  made  his  election  conclusive.     *     *     * 

It  seems  to  me  there  is  good  ground  for  holding  that,  when  one  un- 
dertakes to  collect  the  value  of  his  property  by  making  an  attachment 
to  secure  the  judgment  he  may  obtain,  and  then  prosecutes  his  claim 
to  judgment,  he  has  done  that  which  affects  the  rights  of  the  otlier 
party  far  more  than  the  mere  recovery  of  a  judgment  on  an  unsecured 
claim.  But  however,  that  may  be,  when  after  judgment  the  plaintiff 
proceeds  to  obtain  satisfaction  by  a  levy  on  the  defendant's  property, 
and  much  more  when  he  levies  on  the  property  for  the  value  of  which 
he  obtained  judgment,  and  advertises  it  for  sale  as  the  property  of 
the  defendant,  he  should  be  held  to  have  fixed  his  rights  and  the  rights 
of  the  other  party  in  regard  to  the  title  beyond  his  power  to  change 
them.  By  taking  the  defendant's  property  to  satisfy  the  execution 
he  subjects  him  to  the  legal  costs  and  expenses  attendant  upon  the 
levy,  and  deprives  him  of  what  otherwise  he  would  have.  Even  if 
he  afterwards  returns  the  property  he  puts  upon  him  the  risk  of  loss 
or  depreciation  in  the  value  while  it  is  held.     *     *     * 

The  case  of  Ex  parte  Drake,  5  Ch.  D.  866,  cited  in  die  opinion  of 
the  majority  of  tlie  court,  was  an  action  of  detinue,  where  by  the 
terms  of  the  judgment  the  plaintiff  was  to  have  either  the  property 
or  the  ascertained  value  of  it. 


238  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

If  the  plaintiff  cannot  abandon  her  judgment  and  levy,  and  reclaim 
the  horse  as  against  Bryden,  she  cannot  as  against  this  defendant,  who 
is  in  privity  with  Bryden  through  Davenport,  who  is  a  bona  fide  pur- 
chaser from  Bryden.  So  far  as  the  pending  proceedings  in  Connecti- 
cut under  the  levy  and  the  subsequent  replevin  suit  there  afifect  the 
title,  they  are  binding  on  the  plaintiff  here,  for  the  officer  was  acting 
in  enforcement  of  her  rights  by  her  direction,  and  she  is  therefore  in 
privity  with  him.  His  relation  to  her  is  very  different  from  that  of 
a  mere  bailee. 

The  Chibi'  Justice  concurs  in  this  opinion."" 


WHITE  V.  MARTIN. 
(Supreme  Court  of  Alabama,  1834.     1  Port.  215,  26  Am.  Dec.  365.) 

Saffold,  J."^  The  action  was  trover,  by  Martin  against  tlie  plain- 
tiff in  error,  in  the  Circuit  Court  of  Greene  county,  for  the  conversion 
of  two  negro  children. 

The  suit  was  tried  on  an  agreed  case,  as  follows:  In  1824,  Martin 
brought  trover  against  White  for  the  permanent  conversion  of  sev- 
eral slaves,  alleged  to  be  the  property  of  Martin.  Among  them  was 
a  woman,  Charity.  In  1831,  ]\Tartin  recovered  the  full  value  of  the 
slaves  sued  for,  and  that  judgment  has  been  satisfied.  Pending  that 
suit,  the  young  negroes,  the  subject  of  this  action  were  born.  These 
children  not  being  included  in  that  suit,  no  recovery  was  had  for 
their  value.  A  demand  was  made  of  all  the  slaves  first  sued  for,  in- 
cluding Charity,  before  the  commencement  of  the  former  action.  No 
other  demand  was  made  for  these  now  sued  for.  White  took  the  ne- 
groes first  sued  for,  wrongfully.  If  on  these  facts  the  Circuit  Court 
should  be  of  opinion  the  plaintiff  was  entitled  to  recover,  it  was  agreed 
that  there  should  be  an  inquiry  of  damages — otherwise,  judgment  for 
the  defendant.     *     *     * 

That  a  recovery  in  an  action  of  trover,  for  the  permanent  conver- 
sion of  chattels,  operates  as  a  transfer,  vesting  the  legal  title  in  the 
defendant,  is  a  principle  of  law  now  well  settled,  and  not  recently  con- 

0  3  Taking  out  execution  on  a  judgment  against  one  joint  convertor  for  the 
value  of  the  article  converted  has  been  held  to  bar  an  action  against  the  oth- 
er joint  convertors  for  the  same  conversion.  White  v.  Philbrick,  5  Greenl.  (5 
Me.)  J47,  17  Am.  Dec.  214  (1827);  Kenyon  v.  Woodruff,  33  Mich.  310  (1S76). 
Compare  Livingston  v.  Bishop,  1  Johns.  (N.  Y.)  290.  3  Am.  Dec.  330  (1806). 
Contra,  Lovejoy  v.  Murray,  3  Wall.  1,  18  L.  Ed.  129  (1865). 

A.  recovered  judgment  in  trover  against  B.  for  the  conversion  of  a  watch 
and  imprisoned  B.  for  thirty  days  in  execution.  Held,  this  ds  no  bar  to 
trover  against  C.  claiming  under  I?,  for  a  subsequent  conversion  of  the  same 
watch.  GofE  V.  Craven,  34  Hun  (N.  Y.)  150  (1884).  See  Hopkins  v.  Hersey, 
20  Me.  4-19  (1841) ;    Osterhout  v.  Roberts,  S  Cow.  (N.  Y.)  43  (1827). 

67  The  statement  of  facts  and  part  of  the  opinion  is  omitted. 


Sec.  6)  SATISFACTION   OF  JUDGMENT  239 

tested.  The  doctrine  is  the  same  in  relation  to  trespass,  when  the 
property  is  destroyed,  or  the  owner  deprived  of  its  value.  In  either 
case,  "the  damages  recovered  are  the  price  of  the  chattel  so  trans- 
ferred by  application  of  law — "solutio  pretii  emptionis  lex  habiter" 
[sic].  Chancellor  Kent  so  treats  the  subject,  and  says,  "the  books 
either  do  not  agree,  or  do  not  speak  with  precision  on  the  point, 
whether  the  transfer  takes  place  in  contemplation  of  law,  upon  the 
final  judgment  merely,  or  whether  the  amount  of  the  judgment  must 
first  be  actually  paid  or  recovered  by  execution,"  he  reviews  various 
authorities,  tending  to  different  conclusions  on  the  point.     *     *     * 

As  the  judgment  in  question  was  satisfied  before  the  institution  of 
this  suit,  the  principle  alluded  to,  is  no  further  material  to  this  case, 
than  it  can  influence  the  question  as  to  the  point  of  time  to  which  the 
change  of  title  relates — whether  to  the  conversion,  the  judgment,  or 
the  satisfaction.  Admitting  the  latter  to  be  necessary  to  the  consum- 
mation of  the  transfer,  it  does  not  follow  that  the  relation  is  not  to 
the  former.  That  such  should  be  the  relation,  appears  a  necessary 
consequence  of  the  principle- — that  the  plaintiff  seeks  redress  alone, 
for  the  damages  arising  from  the  conversion — and  that  the  death  or 
the  destruction  of  the  article  by  any  casualty  after^vards,  is  the  loss 
of  the  defendant.  Having  done  the  act,  which  the  plaintiff  may  treat 
as  a  purchase,  if  he  choose  to  elect  that  remedy,  the  defendant  must 
abide  the  consequences  of  the  purchase,  if  the  remedy  be  prosecuted 
with  success.  Even  in  the  action  of  detinue,  as  the  plaintiff  is  entitled 
to  recover  the  alternate  value  of  the  property,  if  the  specific  article 
cannot  be  obtained,  the  plaintiff,  in  the  event  of  the  death  or  destruc- 
tion of  the  property,  pending  the  suit,  may  still  recover  the  value.  It 
was  so  held  by  this  court,  in  White  v.  Ross,  5  Stew.  &  P.  123,  and 
by  the  Supreme  Court  of  Kentucky,  in  Carrel  v.  Early,  4  Bibb,  170. 
In  the  latter  case,  Chief  Justice  Boyle,  observes,  "were  the  recovery 
of  the  specific  thing  the  absolute  and  sole  object  of  the  action  of  deti- 
nue, the  destruction  or  annihilation  of  the  thing  would  necessarily 
defeat  the  action ;  but  as  the  object  of  the  action  is  to  recover  the 
thing  only  on  condition  that  it  can  be  had,  and  if  not,  then  its  alternate 
value,  it  results  that  tlie  action  cannot  be  defeated  by  the  destruction 
of  the  thing,  unless  it  were  under  circumstances  that  would  excuse 
the  defendant  from  being  responsible  for  its  value."     *     *     * 

It  is  contended,  that  justice  will  not  permit  White  to  retain  the 
children  under  his  judicial  title  to  the  mother,  because  he  has  paid 
damages  only  for  her;  and  that  these  furnish  a  subsequent  cause  of 
action.  We  would  incline  to  admit,  that  the  plaintiff  might,  at  any 
time  before  the  former  trial,  unless  barred  by  the  statute,  have  dis- 
missed that  suit,  and  renewed  his  action,  including  the  children. 
Whether  in  diat  event  a  demand  of  the  children  also  would  have  been 
necessary,  is  not  a  question  in  this  view  of  the  case.  But  we  think, 
after  having  the  benefit  of  a  judgment,  and  satisfaction  in  that  ac- 


-40  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

tion,  he  has,  in  legal  contemplation,  full  redress  for  all  the  conse- 
quences of  the  original  injury.  He  is  presumed  to  have  recovered 
the  full  value  of  the  slaves,  converted  at  the  time  of  the  taking,  with 
interest  thereon ;  that  this  is  as  much  as  he  could  have  sold  them  for ; 
and  he  has  elected  to  convert  the  taking  into  a  purchase  by  the  de- 
fendant. *  *  *  All  the  qualities  of  the  article  converted,  are  prop- 
er for  the  consideration  of  the  jur\',  in  determining  their  value;  and 
doubtless,  a  jury  would  place  a  higher  value  on  a  female  slave  prom- 
ising issue,  than  on  one  of  a  contrary  description;  if  she  has  proved 
the  issue,  between  the  conversion  and  the  trial,  she  has  furnished  the 
best  evidence  of  that  quality.  These  circumstances,  it  is  believed,  are 
entitled  to  their  influence  with  the  jury  ;  and  while  increasing  the  dam- 
ages on  account  of  the  development  of  the  prolific  nature  of  the  fe- 
male, they  would  of  course  consider  the  expense  of  nurturing  and 
raising  the  offspring.  In  this  way,  we  believe,  ample  justice  can  be 
done  without  infringing  any  rule  of  law.  We  think  that  the  Circuit 
Court  erred,  as  supposed  in  the  first  assignment  of  error. 

The  disposition  of  the  first  point,  supersedes  the  necessity  of  any 
inquiry  into  the  second. 

Let  the  judgment  be  reversed."* 


BACON  et  al.  v.  KIMMEL. 
(Supreme  Court  of  Michigan,  1S66.    14  Mich.  201.) 

[Trespass  de  bonis  by  the  defendant  in  error  against  the  plaintiff  in 
error.  Bacon  and  others  owned  the  chattels  in  question.  They  mort- 
gaged them  to  one  Wheeler  who  in  1857  took  possession.  In  1858 
Kimmel  began  an  action  against  Bacon  and  attached  the  chattels  thus 
converting  them.  No  sale  took  place  and  Wheeler  regained  possession. 
In  May,  1860,  Bacon  wrongfully  took  the  property  from  the  possession 
of  one  Howe  who  was  taking  care  of  the  property  for  Wheeler.  In 
September,  1860,  Wheeler  began  an  action  of  trespass  de  bonis  against 
Kimmel.  In  April,  1861,  Kimmel  began  the  present  action  against 
Bacon.  In  1863  Wheeler  obtained  judgment  against  Kimmel  which 
judgment  was  satisfied.] 

Christiancy,  J."'  *  *  *  As  to  the  second  ground  upon  which 
the  plaintiff  sought  to  maintain  his  action,  the  judgment  against  him- 
self in  favor  of  Wheeler,  in  an  action  of  trespass  for  taking  and  car- 
rj'ing  away  the  same  property,  and  the  satisfaction  of  that  judgment, 


«8  Ace.:    Hepburn  v.  Sewell,  5  Har.  &  J.  (Md.)  211,  9  Am.  Dee.  512  (1821); 
Smith  V.  Smith,  51  N.  H.  571  (1872). 
8  8  Part  of  the  opinion  is  omitted. 


Sec.  7  GIFT  241 

we  think  it  equally  unavailable  against  these  defendants  in  an  action  of 
trespass,  whatever  might  have  been  its  effect  in  an  action  of  trover. 

Admitting,  for  the  purposes  of  this  case,  that  the  recovery  of  that 
judgment  by  Wheeler  and  its  satisfaction  by  the  plaintiff  had  the  effect, 
as  between  them,  to  vest  the  right  of  property  and  the  possession  in 
the  plaintiff;  and  that,  as  between  them,  it  related  back  so  as  to  perfect 
the  plaintiff's  title  from  the  time  of  the  trespass  for  which  that  judg- 
ment was  obtained,  still  it  could  not  aff'ect  the  defendants  in  this  suit 
so  as  to  make  them  trespassers  as  against  the  plaintiff,  as  the  declara- 
tion was  for  a  taking  which  occurred  more  than  two  years  before  that 
judgment  was  obtained.  There  is  no  evidence  in  the  case  tending  to 
show  that  at  any  time  during  the  period  covered  by  the  declaration,  or 
for  two  years  after  this  suit  was  commenced,  the  plaintiff  had  any  right 
whatever  to  the  property  or  its  possession,  nor  tending  to  show  that 
in  obtaining  the  possession  of  the  property  the  defendants  were  guilty 
of  a  trespass  against  any  one,  much  less  against  the  plaintiff.  And 
whatever  effect  the  recovery  and  satisfaction  of  Wheeler's  judgment 
against  the  plaintiff'  may  have  had,  as  between  them,  by  relation  back, 
it  cannot  by  such  relation  make  the  defendants  trespassers  for  acts 
which  did  not  constitute  a  trespass  as  against  the  plaintiff  at  the  time 
they  were  committed.  Liford's  Case,  11  Coke.  51;  Menvill's  Case, 
13  Coke,  21 ;  Case  v.  De  Goes,  3  Caines  (N.  Y.)  261 ;  Smith  v.  Rlilles, 
1  T.  R.  480;  Balme  v.  Hutton,  9  Bing.  471 ;  Jackson  v.  Bard,  4  Johns. 
f N.  Y.)  234.  4  Am.  Dec.  267 ;  Jackson  v.  Douglass,  5  Cow.  (N.  Y.) 
458. 

The  court  below  was  requested,  but  refused,  to  charge  in  accord- 
ance with  the  principles  above  expressed.  The  judgment  must  be  re- 
versed, with  costs,  and  a  new  trial  granted.''" 


SECTION  7.— GIFT 


COCHRANE  v.  MOORE. 

(Court  of  Appeal.  1S90.    25  Q.  B.  Div.  57.) 

[One  Benzon  owned  a  race  horse,  the  horse  being  in  the  stables 
of  one  Yates.  Benzon  made  a  verbal  gift  to  Moore  of  a  one-fourth 
interest  in  the  horse,  and  a  few  days  later  notified  Yates  of  this  gift. 
Subsequently  Benzon  executed  a  bill  of  sale  of  the  horse  to  Cochrane 
to  pay  for  advances  made  by  the  latter.     Moore's  interest  was  men- 

'0  See  Tliird  Nat.  Bank  v.  Rice,  161  Fed.  822,  88  C.  C.  A.  640,  23  L.  B.  A 
(N.  S.)  1167,  15  Ann.  Cas.  450  (1908). 
Big.Pebs.I'rop. — 16 


242  ACQUISITION   OP   OWNERSHIP  (Cll.  4 

tioned  at  the  time  and  Cochrane  undertook  that  it  should  be  "all  right." 
The  horse  was  subsequently  sold  and  an  interpleader  was  filed  to  set- 
tle the  right  to  one  fourth  of  the  proceeds.  Appeal  from  the  judg- 
ment of  Lopes,  ly.  J.] 

Fry,  L.  J."  *  *  *  On  these  facts  it  was  argued  that  there  was 
no  delivery  and  receipt  of  the  one-fourth  of  the  horse,  and  conse- 
quently, that  no  property  in  it  passed  by  the  gift.  The  learned  judge 
has,  however,  held  that  delivery  is  not  indispensable  to  the  validity  of 
the  gift. 

The  proposition  on  which  the  Lord  Justice  proceeded  may  perhaps 
be  stated  thus:  that  where  a  gift  of  a  chattel  capable  of  delivery  is 
made  per  verba  de  prassenti  by  a  donor  to  a  donee,  and  is  assented  to 
by  the  donee,  and  that  assent  is  communicated  to  the  donor  by  the 
donee,  there  is  a  perfect  gift,  which  passes  the  property  without  de- 
livery of  the  chattel  itself.  This  proposition  is  one  of  much  impor- 
tance, and  has  recently  been  the  subject  of  some  diversity  of  opinion. 
We  therefore  feel  it  incumbent  upon  us  to  examine  it,  even  though  it 
might  be  possible  in  the  present  case  to  avoid  that  examination. 

The  proposition  adopted  by  the  Lord  Justice  is  in  direct  contradic- 
tion to  the  decision  of  the  Court  of  King's  Bench  in  the  year  1819  in 
Irons  v.  Smallpiece,  2  B.  &  A.  551.  That  case  did  not  proceed  upon 
the  character  of  the  words  used,  or  upon  the  difference  between  verba 
de  przesenti  and  verba  de  futuro,  but  upon  the  necessity  of  delivery 
to  a  gift  otherwise  sufficient.  The  case  is  a  very  strong  one,  because 
a  Court  consisting  of  Lord  Tenterden,  C.  J.,  and  Best  and  Holroyd, 
JJ.,  refused  a  rule  nisi,  and  all  held  delivery  to  be  necessary.  The 
Chief  Justice  said :  "I  am  of  opinion  that,  by  the  law  of  England,  in 
order  to  transfer  property  by  gift  there  must  either  be  a  deed  or  in- 
strument of  gift,  or  there  must  be  an  actual  delivery  of  the  thing  to 
the  donee,"  and  he  went  on  to  refer  to  the  case  of  Bunn  v.  Markham, 
2  Marsh.  532,  as  a  strong  authority. 

These  observations  of  the  Chief  Justice  have  created  some  difficulty. 
What  did  he  mean  by  an  instrument  as  contrasted  with  a  deed?  If 
he  meant  that  an  instrument  in  writing  not  under  seal  was  different 
from  parol  in  respect  of  a  gift  inter  vivos,  he  was  probably  in  error; 
but  if  in  speaking  of  the  transfer  of  property  bv  gift,  he  included  gifts 
by  will  as  well  as  gifts  inter  vivos,  then  by  instrument  he  meant  testa- 
mentary instrument,  and  his  language  was  correct. 

Holroyd,  J.,  was  equally  clear  on  the  principal  point:  "In  order  to 
change  the  property  by  gift  of  this  description"  (by  which  we  under- 
stand him  to  mean,  a  gift  inter  vivos)  "there  must  be  a  change  of  pos- 
session." 

The  correctness  of  the  proposition  thus  laid  .down  has  been  asserted 
in  many  subsequent  cases  of  high  authority.     *     *     * 

'  1  Part  of  the  opinion  of  Fry,  L.  J.,  and  the  opinion  of  Lord  Esher  are 
omitted. 


Sec.  7)  GIFT  243 

The  first  note  of  dissent  was  sounded  in  the  year  1841,  or  twenty- 
two  years  after  the  decision  of  the  case  of  Irons  v.  Smallpiece,  2  B. 
&  A.  551,  by  Serjeant  Manning  in  a  note  on  the  case  of  the  London 
and  Brighton  Ry.  Co.  v.  Fairclough,  2  Man.  &  G.  674,  at  p.  691,  in 
which  he  impugned  the  accuracy  of  Irons  v.  Smallpiece,  and  asserted 
that  after  the  acceptance  of  a  gift  by  parol  the  estate  is  in  the  donee 
without  any  actual  delivery  of  the  chattel.  The  authorities  cited  in 
that  note  we  shall  hereafter  consider.     *     *     * 

There  is  thus  some  difference  of  judicial  opinion  as  to  the  rule 
stated  in  Irons  v.  Smallpiece.  We  cannot  think  that  the  few  recent 
decisions  to  which  we  have  referred  are  enough  to  overrule  the  au- 
thority of  that  decision,  and  the  cases  which  have  followed  it,  but  they 
make  it  desirable  to  inquire  whether  the  law  as  declared  before  1819 
was  in  accordance  with  that  decision,  or  with  the  judgment  of  Pol- 
lock, B.,  in  Danby  v.  Tucker,  31  W.  R.  578.     *     *     * 

This  inquiry  into  the  old  law  on  the  point  is  one  of  some  difficulty, 
for  it  leads  into  rarely-trodden  paths,  where  (as  is  very  natural)  we 
have  not  had  the  assistance  of  counsel,  and  where  the  materials  for 
knowledge  are  for  the  most  part  undigested. 

The  law  enunciated  by  Bracton  in  his  book  "de  acquirendo  rerum 
dominio,"  seems  clear  to  the  efifect  that  no  gift  was  complete  without 
tradition  of  the  subject  of  the  gift.  "Item  oportet,"  he  says  (vol.  1, 
p.  128),  "quod  donationem  sequatur  rei  traditio,  etiam  in  vita  donatoris 
et  donatorii ;  alioquin  dicetur  talis  donatio  potius  nuda  promissio  quam 
donatio,  et  ex  nuda  promissione  non  nascitur  actio,  non  magis  quam 
ex  nudo  pacto,  non  enim  valet  donatio  imperfecta,  nee  chartae  con- 
fectio,  nee  homagii  captio  cum  omni  solemnitate  adhibita,  nisi  sub- 
sequuta  fuerit  seysina  et  traditio  in  vita  donatoris."  And  again  (p. 
300) :  "Item  non  sufhcit  chartam  esse  factam  et  signatam  nisi  probetur 
donationem  esse  perfectam,  et  quod  omnia,  quae  donationem  faciunt, 
rite  praecesserunt,  et  subsequutam  esse  traditionem,  alioqui  nunquam 
transferri  potest  res  donata  ad  donatorium.  Poterit  enim  homagium 
praecessisse,  et  quod  charta  rite  facta  sit,  et  vera  et  bona  et  cum 
solemnitate  recitata  et  audita,  tamen  nunquam  valebit  donatio  nisi 
tunc  demum  cum  fuerit  traditio  subsequuta,  et  sic  poterit  charta  esse 
vera,  sed  sine  facta  seysina,  nuda."  And  to  the  same  eflfect  is  another 
passage  in  chapter  xviii,  p.  310. 

In  Bracton's  day,  seisin  was  a  most  important  element  of  the  law 
of  property  in  general ;  and,  however  strange  it  may  sound  to  jurists 
of  our  day  and  country,  the  lawyers  of  that  day  applied  the  term 
as  freely  to  a  pig's  ham  (Select  Pleas  in  Manorial  Courts,  p.  142 ;  see 
also  Professor  Maitland's  papers  on  the  Seisin  of  Chattels,  the  Beati- 
tude of  Seisin,  and  the  Mystery  of  Seisin,  Law  Quarterly  Rev.  i,  324 ; 
ii,  484;  iv,  24,  286)  as  to  a  manor  or  a  field.  At  that  time  the  dis- 
tinction between  real  and  personal  property  had  not  yet  grown  up :  the 
distinction  then  recognised  was  between  things  corporeal,  and  things 


244  ACQUISITION   OF   OWXEIiSHIP  (Cll.  4 

incorporeal:  no  action  could  then  be  maintained  on  a  contract  for 
the  sale  of  goods,  even  for  valuable  consideration,  unless  under  seal: 
the  distinction  so  familiar  to  us  now  between  contracts  and  gifts  had 
not  fully  developed  itself.  The  law  recognised  seisin  as  the  common 
mcident  of  all  property  in  corporeal  things,  and  tradition  or  the  de- 
livery of  that  seisin  from  one  man  to  another  as  essential  to  the 
transfer  of  the  property  in  that  thing,  whether  it  were  land  or  a 
horse,  and  whether  by  way  of  sale  or  of  gift,  and  whether  by  word 
of  mouth  or  by  deed  under  seal.  This  necessity  for  delivery  of  seisin 
has  disappeared  from  a  large  part  of  the  transactions  known  to  our 
law ;  but  it  has  survived  in  the  case  of  feoffments.  Has  it  also  sur- 
vived in  the  case  of  gifts  ? 

It  has  been  suggested  that  Bracton,  whilst  purporting  to  enunciate 
the  law  of  England,  is  really  copying  the  law  of  Rome.  But  by  the 
law  of  Rome,  at  least  since  the  time  of  Justinian,  gift  had  been  a 
purely  consensual  transaction,  and  did  not  require  delivery  to  make  it 
perfect  (Inst,  ii,  vii). 

Coming  next  to  the  great  law-writers  of  the  reign  of  Edward  I, 
they  hold  language  substantially  the  same  as  that  of  Bracton,  except  in- 
deed that  the  difference  between  transactions  purely  voluntary,  or  for 
pecuniary  consideration,  appears  to  be  growing  somewhat  more  im- 
portant. "Donatio,"  says  Fleta,  "est  qusedam  institutio,  quae  ex  mera 
liberalitate,  nullo  jure  cogente,  procedit,  ut  rem  a  vero  ejus  possessore 
ad  alium  transferatur.  Dare  autem  est  rem  accipientis  facere  cum  effec- 
tu,  alioquin  inutilis  erit  donatio,  cum  irritari  valeat  et  revocari"  (Lib.  iii, 
c.  3).  He  then  proceeds  to  discuss  various  kinds  of  gifts,  and  says: 
"Alia  perfecta,  et  alia  inccpta  et  non  perfecta:  ut  si  donatio  lecta 
fuerit  et  concessa,  et  homagium  captum,  ac  traditio  nondum  fuerit 
subsecuta"  (loc.  cit. ;   see  also  Lib.  iii,  c.  15). 

In  Lib.  iii,  c.  7,  he  discusses  the  necessary  elements  of  donations, 
and,  amongst  other  things,  the  effect  of  duress  on  a  gift;  and  here 
the  necessity  of  delivery  is  again  clearly  shewn,  because,  according  to 
Fleta,  a  promise  made  without  duress  followed  by  delivery  under 
duress  is  not  a  valid  gift.  "Refert  tamen,"  he  says,  "utrum  metus 
prseveniat  donationem  vel  subsequatur,  quia  si  primo  coactus,  et  per 
metum  compulsus  promisero,  et  postea  gratis  tradidero,  talis  metus 
non  excusat;  sed  si  gratis  promisero  et  compulsus  tradidero  tunc  ex- 
cusat  metus." 

Britton  held  substantially  the  same  language.  In  citing  him  we  shall 
prefer  tlie  translation  of  Mr.  Nichols  to  the  Norman-French  of  the 
original.  In  his  chapter  on  Gifts  (Lib.  ii,  c.  3),  he  gives  a  very  clear 
description  of  the  nature  of  a  gift.  "A  gift,"  he  says,  "is  an  act 
whereby  anything  is  voluntarily  transferred  from  the  true  possessor 
to  another  j>erson,  with  the  full  intention  that  the  thing  shall  not  re- 
turn to  the  donor,  and  with  full  intention  on  the  part  of  the  receiver  to 
retain  tlie  thing  entirely  as  his  own  without  restoring  it  to  the  giver. 


Sec.  7)  GIFT  245 

For  the  gift  cannot  be  properly  made,  if  the  thing  given  does  not  so 
belong  to  tiie  receiver,  that  the  two  rights,  of  property  and  of  pos- 
session, are  united  in  his  person,  so  that  the  gift  cannot  be  revoked 
by  the  donor,  or  made  void  by  another,  in  whom  the  lawful  property 
is  vested"  (pp.  220,  221). 

And  again  (Lib.  ii,  c.  3) : 

"Some  gifts  are  complete,  where  both  rights  unite  in  the  purchaser; 
others  are  begun,  but  not  completed;  and  such  titles  are  bad,  as  in 
case  of  gifts  granted,  whereof  no  livery  of  seisin  follows"  (pp.  225-6). 

Passages  of  similar  import  will  be  found  in  Lib.  i,  c.  29,  and  Lib. 
ii,  c.  8. 

The  third  writer  of  the  age  of  Edward  I  is  one  of  a  very  different 
character  from  Fleta  and  Britton — we  mean  Horn,  the  author  of 
the  Mirror  of  Justices;  he  attacked  the  judges  and  the  administra- 
tion of  the  law  in  his  days  with  a  vehemence  which  it  is  to  be  hoped 
was  undeserved.  But  though  amongst  the  155  abusions  or  abuses  of 
the  law  which  stirred  his  soul  to  wrath,  some  relate  to  seisin,  yet  he 
has  nothing  to  say  at  variance  with  his  contemporaries  on  the  necessity 
of  delivery ;  but,  on  the  contrary,  expressly  affirms  that  "the  law  re- 
quires but  three  things  in  contracts:  L  The  agreement  of  the  wills: 
2.  Satisfaction  of  the  donor;  3.  Delivery  of  the  possession  and  gift" 
(Chap,  v,  sect.  I,  para.  75). 

In  the  reign  of  Edward  IV  a  step  seems  to  have  been  taken  in  the 
law  relative  to  gifts  which  resulted  in  this  modification:  that  whereas 
under  the  old  law  a  gift  of  chattels  by  deed  was  not  good  without  the 
delivery  of  the  chattel  given,  it  was  now  held  that  the  gift  by  deed 
was  good  and  operative  until  dissented  from  by  the  donee. 

Thus  in  Michaelmas  Term,  7  Edw.  4,  pi.  21,  fol.  20,  it  was  held  by 
Choke  and  other  justices  that  if  a  man  executes  a  deed  of  gift  of  his 
goods  to  me  that  this  is  good  and  effectual  without  livery  made  to 
me,  until  I  disagree  to  the  gift,  and  this  ought  to  be  in  a  Court  of 
Record. 

In  Hilary  Term,  7  Edw.  4,  pi.  14,  fol.  29,  it  was  alleged  by  counsel 
(Catesby  and  Pigot),  that  if  a  man  give  to  me  all  his  goods  by  a  deed, 
although  the  deed  was  not  delivered  to  the  donee,  nevertheless  the 
gift  is  good,  and  if  he  chooses  to  take  the  goods  he  can  justify  this 
by  the  gift,  although  notice  has  not  been  given  to  him  of  the  gift ;  and 
further,  that  if  the  donee  commit  felony  before  notice,  &c.,  still  the 
king  will  have  the  goods,  and  although  notice  may  be  material,  never- 
theless when  he  has  notice,  this  would  have  relation  to  the  time  of  the 
gift,  &c.  But  the  Court  said  that  such  a  gift  is  not  good  without  no- 
tice, for  a  man  cannot  give  his  goods  to  me  against  my  will. 

An  earlier  case  in  the  same  reign  has  been  cited  as  bearing  on  the 
present  question.  In  Michaelmas  Term,  2  Edw.  4,  pi.  26,  fol.  25,  a 
case  arose  on  trespass  of  goods,  in  which  Laicon  was  counsel  for  the 
defendant,  and  the  Court  was  engaged  in  considering  the  sufficiency  of 


24  G  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

his  pleas.  In  the  course  of  the  discussion  Laicon  put  this  question, 
"Suppose  I  give  to  you  my  goods,  which  are  at  Everwike,  and  be- 
fore that  you  are  seized  of  them,  a  stranger  takes  them  away,  have 
you  not  a  writ  of  trespass  against  the  stranger?"  Which  he  then  pro- 
ceeds to  answer.  "Yes,  sir,  for  by  the  gift  at  once  the  property  was  in 
you  and  the  possession  by  the  writ  is  adjudged  in  you  presently.  Dan- 
by,  the  Chief  Justice  of  the  Common  Pleas,  seems  to  have  assented, 
apparently  on  the  ground  that  pleading  to  such  a  writ  by  way  of 
justification  would  confess  the  possession  of  the  plaintiff  and  the  tak- 
ing by  the  defendant  (car  la  si  vous  pled.  vr.  matter  accord  et  justif, 
et  vous  confess,  prisel  hors  de  son  poss.).  But  immediately  after  this 
discussion  Laicon  found  his  argument  so  hopeless  (videns  opinionem 
curias  contra  eum)  that  he  seems  to  have  amended  his  pleadings. 

This  case  seems  to  us  of  no  authority  on  the  point  under  investiga- 
tion. What  was  said  was  not  in  discussion  of  what  really  passed  by 
the  gift,  but  only  of  the  effect  of  pleading  in  preventing  the  denial  of 
the  plaintiff's  possession.  The  question  seems  to  relate  to  an  effectual 
gift  of  goods  without  possession,  but  there  is  nothing  to  shew  whether 
the  parties  to  the  discussion  had  in  contemplation  a  gift  by  deed  or 
not.  The  cases  already  referred  to  which  occurred  a  few  years  later 
seem  to  shew  that  the  effect  of  a  deed  in  passing  the  property  without 
delivery  of  the  chattel  was  claiming  the  attention  of  the  lawyers  of  that 
day. 

Brooke,  in  his  Abridgment  (Trespass,  303),  cites  this  case  of  the 
2  Edw.  4,  and  seems  to  put  it  upon  a  somewhat  different  ground  to 
the  Year  Book  itself.  He  says  that  Danby  agreed  in  Laicon's  argu- 
ment, "for  by  the  gift  the  property  is  in  him,  and  then  the  law  ad- 
judges possession,  which  was  not  denied,  and  it  seems  to  be  the  law, 
because  goods  are  transitory  whilst  land  is  local."  We  can  find  no 
authority  for  these  reasons  in  the  entry  which  he  professes  to  be  ab- 
stracting. 

This  case,  as  explained  by  Brooke,  seems  to  underlie  the  proposition 
asserted  twice  in  the  case  of  Hudson  v.  Hudson  (1),  discussed  in  2 
Wms.  Saunders,  47,  a,  to  illustrate  the  right  of  an  executor  to  sue 
in  trover  before  actual  possession.  If,  it  was  said,  a  man  in  London 
gives  to  me  his  goods  in  York  and  another  take  tliem  I  can  bring  tres 
pass ;  for  property,  it  was  added,  draws  possession  in  chattels  per- 
sonal. The  Court  were  not  considering  what  gift  of  chattels  did  car- 
ry the  property,  but  only  illustrating  the  proposition  that  where  the 
property  has  passed,  as  by  the  will  to  the  executor,  there  the  law 
attracts  to  it  possession.  This  would  be  perfectly  illustrated  by  the 
case  of  chattels  in  York  transferred  by  deed  executed  in  London.  The 
whole  supposition  that  this  case  lends  any  countenance  to  the  notion 
that  chattels  can  pass  without  delivery  seems  to  be  derived  from  the 
silence  of  the  case  as  to  the  way  in  which  the  gift  was  made:  and  this 
point  was  not  material  to  the  matter  under  consideration  by  the  Court. 


Sec.  7)  GIFT  247 

Moreover,  where  a  legal  result  could  only  be  produced  by  a  deed,  our 
elder  law-writers  were,  we  believe,  less  apt  to  mention  the  deed  than 
their  less  technical  descendants. 

One  other  case  in  the  reign  of  Edward  IV  must  be  mentioned.  In 
Michaelmas  Term,  21  Edw.  4,  pi.  27,  fol.  55,  it  was  said  by  Brian,  J., 
that  in  detinue  of  chattels  it  was  a  good  plea  to  say  that  the  plaintiff 
after  the  bailment  gave  them  to  the  defendant  and  then  he  could  have 
his  law — quod  fuit  concessum.  The  case  appears  to  go  only  to  this, 
that  if  A.  after  bailing  a  chattel  to  B.  then  gives  it  to  B.,  B.  might  de- 
fend himself  by  his  suit  in  an  action  of  detinue.  If  good  law,  it 
seems  to  establish  that  delivery  first  and  gift  afterwards  is  as  effectual 
as  a  gift  first  and  delivery  afterwards. 

One  case  in  the  reign  of  Henry  VII  perhaps  requires  considera- 
tion (Hilary  Term,  21  Hen.  7,  pi.  30,  fol.  18).  The  question  seems 
to  have  been  whether  the  use  of  land  was  presently  transferred  by  a 
bargain  and  sale,  and  in  the  course  of  the  report  the  following  pas- 
sage occurs  :  "If  I  give  to  a  man  my  cow  or  my  horse,  he  may  take  the 
one  or  the  other  at  his  election :  and  the  cause  is  that  immediately  by 
the  gift  the  property  is  in  him,  and  that  of  the  one  or  the  other  at 
his  will ;  but  if  the  case  were  that  I  will  give  to  him  a  horse  or  a 
cow  in  future  time,  then  he  cannot  take  either  the  one  or  the  other, 
for  then  it  is  in  my  election  to  choose  which  of  them  I  will  give  him." 
The  case  is  interesting  as  the  first  one  which  we  have  found  which 
emphasizes  the  distinction  in  gifts  between  words  in  the  present  and  in 
the  future  tense.  But  the  passage  we  have  cited  appears  to  have  no  real 
weight  of  authority.  It  is  only  part  of  the  argument  of  the  Attorney- 
General,  and  the  argument  does  not  appear  tenable ;  for  surely  it  is 
open  to  question  whether  the  gift,  even  a  grant  for  valuable  considera- 
tion, of  one  or  other  of  two  things  at  the  election  of  the  donee  or  gran- 
tee can  pass  the  property  in  one  or  other  or  both  of  these  things  im- 
mediately and  before  the  election  of  the  grantee.  It  is  further  to  be 
observed  that  the  question  before  the  Court  turned  on  the  doctrine  of 
election;  and  whether  the  supposed  gift  was  to  be  by  deed  or  not  is  a 
point  on  which  the  report  is  silent.  This  silence  i.s  the  only  reason  why 
the  passage  has  been  thought  by  some  persons  relevant  to  the  present 
inquiry. 

It  was  in  the  reigns  of  the  early  Tudors  that  the  action  on  the  case 
on  indebitatus  assumpsit  obtained  a  firm  foothold  in  our  law ;  and 
the  effect  of  it  seems  to  have  been  to  give  a  greatly  increased  impor- 
tance to  merely  consensual  contracts.  It  was  probably  a  natural  re- 
sult of  this  that,  in  time,  the  question  whether  and  when  property 
passed  by  the  contract  came  to  depend,  in  cases  in  which  there  was 
a  value  consideration,  upon  the  mind  and  consent  of  the  parties,  and 
that  it  was  thus  gradually  established  that  in  the  case  of  bargain  and 
sale  of  personal  chattels,  the  property  passed  according  to  tliat  mind 


248  ACQUISITION   OF  OWNERSHIP  (Cll.  4 

and  intention,  and  a  new  exception  was  thus  made  to  the  necessity 
of  delivery. 

This  doctrine  that  property  may  pass  by  contract  before  delivery 
appears  to  be  comparatively  modern.  It  may,  as  has  been  suggested, 
owe  its  origin  to  a  doctrine  of  the  civil  law  that  tlie  property  was  at 
the  risk  of  the  purchaser  before  it  passed  from  the  vendor ;  but  at  any 
rate  the  point  was  thought  open  to  argument  as  late  as  Elizabeth's 
reign  (see  Plowd.  lib,  and  see  a  learned  note,  2  Man.  &  Ry.  566). 

Flower's  Case,  Noy,  67  (which  seems  to  have  been  decided  in  39 
Elizabeth,  see  p.  59),  appears  to  shew  that  the  necessity  of  delivery 
was  then  upheld  by  the  Court.    The  case  is  thus  stated  by  Noy  (p.  67) : 

"A.  borrowed  one  hundred  pound  of  B.  and  at  the  day  brought  it 
in  a  bagg  and  cast  it  upon  the  table  before  B.  and  B.  said  to  A.  being 
his  nephew,  I  will  not  have  it,  take  it  you  and  carry  it  home  again 
with  you.  And  by  the  Court,  that  is  a  good  gift  by  paroll,  being  cast 
upon  the  table.  For  then  it  was  in  the  possession  of  B.  and  A.  might 
well  wage  his  law.  By  the  Court,  otherwise  it  had  been,  if  A.  had 
only  ofifer'd  it  to  B.  for  then  it  was  chose  in  action  only,  and  could  not 
be  given  without  a  writing." 

The  Court  seems  to  have  held  that  delivery  was  necessary,  but 
that  by  the  casting  of  the  money  on  the  table  it  came  into  the  pos- 
session of  the  uncle,  and  that  the  nephew  taking  the  money  in  his 
uncle's  presence  and  by  his  direction,  there  was  an  actual  delivery  by 
the  uncle  to  the  nephew — so  that  the  nephew  might  wage  his  law,  i.  e., 
might  conscientiously  swear  that  he  was  not  indebted  to  his  uncle 
(see  the  case  discussed  in  Douglas  v.  Douglas,  L.  T.  [N.  S.]  127). 

In  Jenkins's  Centuries  (3d  Century,  Case  i.x),  it  is  said:  "A  gift  of 
anything  without  a  consideration  is  good ;  but  it  is  revocable  before  the 
delivery  to  the  donee  of  the  thing  given.  Donatio  perficitur  possessione 
accipientis.  This  is  one  of  the  rules  of  law" : — a  statement  made  with 
little  reference  to  the  other  matters  treated  of  in  the  case.  We  know 
of  no  other  authority  exactly  to  the  same  efifect  as  this,  nor  is  it  stat- 
ed as  having  the  authority  of  any  judicial  decision. 

Blackstone's  discussion  of  the  subject  of  gifts  of  chattels  is  perhaps 
not  so  precise  as  might  be  desired ;  but  his  language  does  not  seem  to 
us  essentially  to  differ  from  the  earlier  authorities :  "A  true  and  proper 
gift  or  grant  is,"  he  says,  "always  accompanied  with  delivery  of  pos- 
session and  takes  efifect  immediately."  "But  if  the  gift  does  not  take 
efifect  by  delivery  of  immediate  'possession,  it  is  then  not  properly  a 
gift,  but  a  contract :  and  this  a  man  cannot  be  compelled  to  perform" 
(Book  2,  c.  30). 

In  1818  the  year  before  Irons  v.  Smallpiece,  2  B.  &  A.  551,  was  de- 
cided, the  then  Master  of  the  Rolls,  Sir  Thomas  Plumer,  in  Hooper  v. 
Goodwin,  1  Sw.  485,  491,  said:  "A  gift  at  law  or  in  equity  supposes 
some  act  to  pass  the  property:  in  donations  inter  vivos  *  *  *  if 
the  subject  is  capable  of  delivery,  delivery." 


Sec.  7)  GIFT  249 

These  are,  so  far  as  we  can  find,  all  the  relevant  authorities  before 
the  decision  in  Irons  v.  Smallpiece,  2  B.  &  A.  551,  though  they  are  not 
all  the  authorities  that  have  been  cited  as  relevant.  But  several  that 
have  been  relied  upon  appear  to  us  to  have  no  real  bearing  on  the  point 
at  issue.  Thus  in  Wortes  v.  Clifton,  Roll.  61,  Mich.  12  James  1,  Coke 
arguendo  uses  as  an  illustration  of  the  difference  between  the  Civil 
law  and  ours — that  in  the  Civil  law  a  gift  is  not  good  without  tradition 
— but  that  it  is  otherwise  in  our  law.  Here  for  aught  that  appears,  the 
gift  which  the  learned  counsel  referred  to  as  good  without  delivery  is  a 
gift  by  deed. 

In  like  manner  several  authorities  which  affirm  that  a  gift  of  chattels 
may  be  good  without  deed  and  are  silent  as  to  delivery  (Perkins'  Prof- 
itable Book,  Grant,  57 ;  2  Shep.  Touchs.  227 ;  Comyn,  Digt.  Biens,  D, 
2)  have  been  cited  as  if  they  likewise  asserted  that  a  gift  was  good 
without  delivery — a  proposition  which  they  do  not  affirm,  or,  as  we 
think,  imply. 

This  review  of  the  authorities  leads  us  to  conclude  that  according  to 
the  old  law  no  gift  or  grant  of  a  chattel  was  eft'ectual  to  pass  it  whether 
by  parol  or  by  deed,  and  whether  with  or  without  consideration  unless 
accompanied  by  delivery:  that  on  that  law  two  exceptions  have  been 
grafted,  one  in  the  case  of  deeds,  and  the  other  in  that  of  contracts  of 
sale  where  the  intention  of  the  parties  is  that  the  property  shall  pass 
before  delivery:  but  that  as  regards  gifts  by  parol,  the  old  law  was  in 
force  when  Irons  v.  Smallpiece,  2  B.  &  A.  551,  was  decided:  that  that 
case  therefore  correctly  declared  the  existing  law :  and  that  it  has  not 
been  overruled  by  the  decision  of  Pollock,  B.,  in  1883,  or  the  subse- 
quent case  before  Cave,  J. 

We  are  therefore  unable  in  the  present  case  to  accept  the  law  on 
this  jioint  as  enunciated  by  Lopes,  L.  J.,  in  deference  to  the  two  latest 
decisions. 

But  assuming  delivery  to  be  necessary  in  the  case  of  the  gift  of  an 
ordinary  chattel,  two  questions  would  remain  for  consideration  in  the 
present  case — the  first,  whether  the  undivided  fourth  part  of  the  horse 
admits  delivery,  or  whether  on  the  other  hand  it  is  to  be  regarded  as 
incorporeal  and  incapalile  of  tradition ;  the  other,  whether  the  letter 
written,  by  Benzon  to  Yates  was  either  a  constructive  delivery  of  this 
undivided  fourth  part  of  the  horse,  or  an  act  perfecting  the  gift  of 
this  incorporeal  part  so  far  as  the  nature  of  the  subject-matter  of  the 
gift  admits.  On  these  points  we  do  not  think  it  needful  to  express  any 
decided  opinion,  because  in  our  judgment  what  took  place  between 
Benzon  and  Cochrane  before  Benzon  executed  the  bill  of  sale  to  Coch- 
rane, constituted  the  latter  a  trustee  for  Moore  of  one- fourth  of  the 
horse  Kilworth. 


250  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

HILLEBRANT  v.  BREWER  et  ux. 
(Supreme  Court  of  Texas,  1851.    6  Tex.  45,  55  Am.  Dec.  757.) 

[The  appellant,  defendant  below,  was  the  father  of  the  female  ap- 
pellee. When  the  latter  was  a  child  the  father  had  caused  a  cattle 
brand  to  be  recorded  in  the  name  of  the  child  and  had  branded  cer- 
tain cattle  with  the  brand  and  had  spoken  of  them  as  his  daughter's 
cattle.  He  subsequently  sold  them  and  this  action  is  brought  for  their 
value.    Verdict  below  was  for  the  plaintiffs.] 

WheulER,  J.'^  *  *  *  'pj^g  evidence  relied  on  by  the  plaintiffs 
to  establish  their  title  by  gift  to  the  property  in  question  consisted  of 
the  acts  and  declarations  of  the  donor.  These  were  numerous  and  con- 
tinuous, and  were,  we  think,  of  a  character  to  warrant  the  jury  in  find- 
ing the  fact  of  a  gift.  But  it  is  insisted  that  the  gift  was  incomplete 
and  ineft'ectual  for  the  want  of  a  delivery  of  the  possession  of  the 
prop>erty  by  the  donor  to  the  donee ;  and  we  are  referred  to  the  decision 
of  this  court  in  the  case  of  Chevallier  v.  Wilson  and  Wife,  1  Tex.  161. 
There  can  be  no  doubt  that  by  the  common  law  delivery  of  possession 
is  essential  to  the  validity  of  a  parol  gift,  and  so  this  court  held  in  the 
case  cited.  The  necessity  of  a  delivery,  says  Oiancellor  Kent,  has  been 
maintained  in  every  period  of  the  English  law.  2  Kent,  Com.  438;  2 
Bl.  Com.  441 ;   Grangiac  v.  Arden,  10  Johns.  (N.  Y.)  293. 

But  what  will  amount  to  a  delivery  must  depend  upon  the  nature  of 
the  thing  and  the  circumstances  of  the  case.  Actual  manual  delivery 
is  not  in  all  cases,  necessary.  Where  the  thing  is  incapable  of  actual 
delivery,  or  where  the  situation  of  the  parties  or  the  circumstances  of 
the  case  will  not  admit  of  it,  it  may  be  symbolical  or  constructive.  2 
Kent,  Com.  439;  Carradine  v.  Collins,  7  Smedes  &  M.  (Miss.)  428; 
Blakey  v.  Blakey,  9  Ala.  391.  There  may  be  circumstances  under 
which  a  gift  may  be  complete  and  valid,  as  between  donor  and  donee, 
without  delivery,  and  the  possession  of  the  former  will  not  be  incon- 
sistent with  the  right  of  the  latter.     *     *     * 

Upon  the  principle  of  these  authorities  the  gift  in  the  present  case 
ought  perhaps,  to  be  supported  without  a  delivery  or  any  equivalent 
act  if  it  had  been  made  clearly  to  appear  in  evidence  that  the  donee 
was  a  minor,  living  with  her  father,  the  donor.  Such  probably  was  the 
fact,  but  it  does  not  so  appear  conclusively  from  the  evidence  embodied 
in  the  record. 

The  branding  and  recording  of  the  brand,  however,  used  as  evidence 
of  ownership,  considered  in  reference  to  the  character  of  the  property 
and  the  circumstances  of  the  case,  was,  it  is  conceived,  such  a  symboli- 
cal or  constructive  delivery  in  respect  to  this  property  as  was  equiva- 
lent to  actual  delivery.     These  acts  afforded,  perhaps,  as  satisfactory 

'2  Tart  of  the  opinion  is  omitted. 


Sec.  7)  GIFT  251 

evidence  of  the  intention  of  the  donor  to  part  with  the  dominion  and 
ownership  of  the  property  as  the  nature  of  the  case  would  admit  of. 
It  is  analogous  to  a  gift  by  deed  or  writing,  which,  as  between  donor 
and  donee,  has  been  held  tantamount  to  a  delivery.  McCutchen  v. 
McCutchen,  9  Port.  (Ala.)  650;  Caines  v.  Marley,  2  Yerg.  (Tenn.)  582; 
2  B.  &  Aid.  R.  351.  On  the  question  of  title,  therefore,  the  evidence 
was,  we  think,  sufficient  to  authorize  the  verdict.''     *     *     * 


DEVOL  et  al.  v.  DYE  et  al. 
(Supreme  Court  of  Indiana,  1890.    123  Ind.  321,  24  N.  E.  246,  7  L.  R.  A.  439.) 

[William  C.  Devol,  deceased,  was  prior  to  his  death  president  of 
a  bank.  He  had  a  private  drawer  in  the  vault  of  the  bank,  to  which 
drawer  he  alone  had  access.  Becoming  very  ill  and  realizing  the  prob- 
ably fatal  termination  of  his  illness,  he  intrusted  the  key  of  his  drawer 
to  one  Lane,  the  cashier  of  the  bank.  Three  days  before  his  death  he 
told  Lane  that  he  wished  to  make  Dye,  his  cousin,  a  present  of  $5,000, 
and  that  he  had  put  $2,000  in  gold  in  a  bag  for  him.  He  then  di- 
rected Lane  to  put  $3,000  more  in  a  bag  and  mark  it  with  Dj^e's  name 
as  the  first  one  was  marked.  Lane  did  so,  told  Devol,  and  the  latter 
approved.  The  bags  containing  the  gold  remained  in  Devol's  drawer 
until  after  his  death ;  Lane  retaining  the  key.  This  contest  is  by  Dye 
and  another  similar  donee  against  certain  residuary  legatees  under 
Devol's  will.] 

Mitchell,  C.  J.'*  *  *  *  ^^  gjft^  causa  mortis  is  consummated 
when  a  person  in  peril  of  death,  and  under  the  apprehension  of  ap>- 
proaching  dissolution  from  an  existing  disorder,  delivers,  or  causes  to 
be  delivered,  to  another,  or  affords  the  other  the  means  of  obtaining 
possession  of  any  personal  goods  for  his  own  use,  upon  the  express  or 
implied  condition  that  in  case  the  donor  shall  be  delivered  from  the 
peril  of  death  the  gift  shall  be  defeated.     Blackstone  defines  donatio 

"3  A.  owned  and  had  in  his  possession  a  colt.  He  told  B.,  his  son,  that  he 
made  him  a  present  of  this  colt  The  colt  continued  to  remain  in  the  pos- 
session of  A.  About  six  months  later  A.  offered  to  B.  to  supply  hay  for  the 
colt  at  cost,  but  none  was  furnished  until  three  or  four  days  before  A.'s  death, 
which  was  about  a  year  after  the  verbal  gift  of  the  colt.  Held,  B.  cannot 
maintain  trover  for  the  colt  against  A.'s  executrix,  who  refused  to  give  it 
up.     Irons  V.  Smallpiece,  3  B.  &  Aid.  551  (1S19). 

A.,  in  the  presence  of  B.  his  wife,  bought  a  horse  from  C,  declaring  that  he 
bought  it  as  a  gift  for  B.  and  that  it  was  hers.  The  horse  was  shipped  to  A.'s 
stable  and  kept  with  his  other  horses  until  his  death  a  week  later.  Held  a 
valid  gift.     Wheeler  v.  Wheeler,  43  Conn.  503  (ISTti). 

It  was  intimated  in  Noble  v.  Smith,  2  Johns.  (N.  T.)  52,  3  Am.  Dec.  399 
(1806),  that  an  effectual  delivery  of  a  gift  of  growing  grain  can  be  made 
only  bv  putting  the  donee  in  possession  of  the  laud.  Compare  Shaffer  v. 
Stevens,  143  Ind.  295,  42  X.  E.  620  (1896). 

'*  Part  of  the  opinion  is  omitted. 


252  ACQUISITION   OF   OWNERSHIP  (Cll.  4 

causa  mortis  to  be  a  gift  in  prospect  of  death,  "when  a  person  in  his, 
last  sickness,  apprehending  his  dissohition  near,  delivers  or  causes  to 
be  delivered  to  another,  the  possession  of  any  personal  goods  to  keep 
as  his  own  in  case  of  his  decease." 

The  chief  distinction  between  gifts  inter  vivos  and  those  of  the  char- 
acter here  in  question,  is  that  while  the  former  are  consummated  by 
delivery  the  title  to  the  property  is  irrevocably  vested,  while  in  the  lat- 
ter the  title  is  ambulatory  and  inchoate  until  the  death  of  the  donor  oc- 
curs. 

The  concurrence  of  three  things  is  essential  to  the  consummation 
of  a  gift  causa  mortis:  (1)  The  thing  given  must  have  been  of  the 
personal  goods  of  the  donor;  (2)  it  must  have  been  given  while  the 
latter  was  in  peril  of  death,  or  while  he  was  under  the  apprehension 
of  impending  dissolution  from  an  existing  malady,'^  and  (3)  the  pos- 
session of  the  thing  given  must  have  been  actually,  or  constructively, 
delivered  to  the  donee,  or  to  some  one  for  his  use,  with  the  intention 
that  the  title  should  then  vest  conditionally  upon  the  death  of  the 
donor,  leaving  sufficient  assets  in  addition  to  pay  his  debts.  A  mere 
unexecuted  purpose,  however  clearly  or  forcibly  expressed,  so  long 
as  it  rests  merely  in  intention,  is  not  effectual.  The  intention  must 
not  only  have  been  manifested,  but,  in  addition,  in  order  to  consum- 
mate the  gift,  the  donor  must  have  transferred  the  possession  of  the 
thing  to  the  donee  in  person,  or  to  some  one  for  his  use,  under  such 
circumstances  as  that  the  person  to  whom  delivery  is  made  is  thence- 
forward affected  with  a  trust  or  duty  in  the  donee's  behalf.     *     *     * 

It  clearly  appears  from  the  facts  found  in  the  present  case  that  the 
sacks  containing  the  gold  coin,  as  well  as  the  package  in  which  the 
currency  was  sealed,  were  delivered  to  the  cashier  of  the  bank  for  the 
use  of  the  intended  donees.  Each  parcel  of  money  contained  written 
upon  it,  what,  in  effect,  amounted  to  the  declaration  of  a  trust  in  favor 
of  the  person  who  was  indicated  to  be  the  owner  of  its  contents.  The 
money  was  carefully  counted  and  placed  in  packages,  thus  separating 
It  from  all  the  other  money  and  valuables  of  the  donor.  Upon  each 
parcel,  or  package,  appeared  a  written  declaration  made  by,  or  at  the 
request  of  the  donor,  indicating  as  plainly  as  language  could  the  inten- 
tion of  the  latter  in  respect  to  the  title  and  ownership  of  the  property. 
The  character  of  the  property  was  such  that  no  prudent  person  would 

'5  A.  was  going  to  the  hospital  for  an  operation."  He  delivered  a  bo.x  to 
B.,  sa.ving  that  he  feared  the  operation  might  be  fatal  and  that,  if  he  did 
not  return  from  the  hospital,  the  contents  of  the  box  were  for  P..  The  op- 
eration was  successful,  but  while  A.  was  still  at  the  hospital  he  died  from 
heart  disease.  Held,  B.  took  title.  Ridden  v.  Thrall,  125  N.  Y.  572,  26  N.  E. 
627,  11  L.  R.  A.  684,  21  Am.  St.  Rep.  758  (ISOl). 

A.  Ijeing  in  general  111  health,  but  not  immediately  anticipating  death,  de- 
livered a  bag  of  gold  to  the  cashier  of  a  bank,  telling  him  to  deliver  it  only 
to  A.  or  W.,  A.'s  wife,  and  in  the  event  of  A.'s  death  only  to  W.  Held  not  a 
gift,  either  eausa  mortis  or  inter  vivos.  Sheegog  v.  Perkins,  4  Baxt.  (G3 
Tenn.)  273  (1874). 


Sec.  7)  GIFT  253 

have  directed  its  removal  from  the  vault  of  the  bank.  The  donor  had 
relinquished  the  key  to  his  private  drawer  and  tin  box  to  the  cashier 
of  the  bank,  thereby  effectually  surrendering,  so  far  as  could  be,  all 
dominion  over  the  property,  and  affording  to  the  donees  the  means  of 
obtaining  possession  of  it.^" 

Without  pausing  to  review  the  authorities,  it  is  sufficient  to  say  that 
where  property  is  delivered  to  a  third  person  for  the  use  of  another, 
as  a  gift  causa  mortis,  and  its  delivery  is  accompanied  by  a  .written 
declaration  clearly  indicating  that  it  is  delivered  for  the  use,  or  upon 
a  trust  for  an  intended  donee,  or  where  a  death-bed  delivery  is  made 
in  the  presence  of  witnesses,  who  are  disinterested  and  called  for  the 
purpose,  the  intention  of  the  donor  should  not  be  permitted  to  fail  by 
a  narrow  and  illiberal  construction,  in  case  a  delivery  corresponding 
with  the  condition  of  the  donor  and  the  situation  of  the  property  was 
actually  made.  Ellis  v.  Secor,  31  Mich.  185,  18  Am.  Rep.  178:  Wil- 
liams V.  Guile,  117  N.  Y.  343,  22  N.  E.  1071,  6  L.  R.  A.  366;  2 
Schouler,  Per.  Prop.  §  179. 

Our  conclusion  is  that  the  facts  found  show  a  valid  delivery  to  the 
cashier  for  the  use  of  the  donees,  and  that  the  delivery  was  made  in 
view  of  impending  death.     *     *     * 

It  may  not  be  amiss  to  say  that  it  was  not  necessary  that  the  donees 
should  have  constituted  the  cashier  of  the  bank  their  bailee,  or  trus- 
tee, nor  that  they  should  have  known  of  the  intended  gift,  or  of  the 
delivery,  in  order  to  make  it  an  effectual  delivery  to  him  as  their  trus- 
tee. The  gift  being  beneficial  to  them,  their  acceptance  of  it  is  pre- 
sumed until  the  presumption  is  removed.     Blasdel  v.  Locke,  52  N.  H. 

'«  Tlie  delivery  of  the  key  of  a  box  or  drawer  to  the  donee  him.^elf  with 
intent  thereljy  to  pass  title  to  the  contents  will  constitute  a  valid  delivery: 
Inter  vivos,  Marsh  v.  Fuller,  IS  N.  H.  360  (1846)  ;  Cooper  v.  Burr,  4.5  Barb. 
(X.  Y.)  9  (1865);  causa  mortis,  Thomas'  Adm'r  v.  Lewis,  89  Va.  1,  15  S.  E. 
380.  18  L.  R.  A.  170,  37  Am.  St.  Rep.  848  (1892).  Contra,  Hatch  v.  Atkinson. 
56  Me.  324,  96  Am.  Dec.  464  (1868).  Compare  Goulding  v.  Horbury,  85 
Me.  227,  27  Atl.  127.  35  Am.  St.  Rep.  357  (1892). 

"Delivery  of  the  key  of  bulky  goods  has  been  allowed  as  delivery  of  the 
possession,  because  it  is  the  way  of  coming  at  the  possession  or  to  make  use 
of  the  thing;  and  therefore  the  kev  is  not  a  symbol,  which  would  not  do." 
Ward  V.  Turner,  2  Ves.  Sr.  431,  443  (1752). 

A.  had  been  a  roomer  in  B.'s  house.  B.  claimed  the  furniture  of  A.  as  a 
gift,  and  proved  that  when  A.  came  there  he  said  B.  was  to  have  the  furni- 
ture, and  on  several  occasions  when  he  went  away  had  left  the  kev  of  the 
room  with  B.    Held  a  valid  gift.     Smith  v.  Smith.  2  Strange,  9.55  (1733). 

A.  marked  two  packages  of  bonds,  one  for  X..  one  for  Y..  stating  that  they 
were  to  he  delivered  after  his  death.  He  placed  the  packages  in  an  iron 
chest,  which  was  locked  by  his  directions  and  the  key  of  w-hich  was  delivered 
to  him.  He  kept  it  for  a  few  days,  then  gave  it  to  X.  to  keep,  and  a  week 
later  took  it  back  from  X.  and  kept  it  until  he  died.  Held  no  gift.  Bunn  v. 
Markham,  7  Taunt.  224  (1816). 

A.  was  feeble  and  almost  unable  to  walk.  He  had  secretly  buried  money  in 
various  places  in  his  yard.  He  pointed  out  these  places  to  B.,  and  told  B. 
that  he  made  her  a  gift  of  the  money.  Held,  B.  thereupon  acquired  title. 
V\aite  V.  Grubbe,  43  Or.  406,  73  Pac.  206,  99  Am.  St.  Rep.  764  (1903). 


254  ACQUISITION   OF   OWNERSHIP  (Ch.  4 

238;    Darland  v.  Taylor,  52  Iowa,  503,  3  N.  W.  510,  35  Am.  Rep. 
285  ;    Trowell  v.  Carraway,  10  Heisk.  (Tenn.)  104. 
The  judgment  is  affirmed,  with  costs.^' 


DREW  V.  HAGERTY. 

(Suprem*  Judicial  Court  of  Maine,  1SS9.    SI  Me.  231,  17  Atl.  63,  3  L.  R.  A. 
230,  10  Am.  St.  Rep.  255.) 

Wai.ton,  J.'*  The  most  important  question  is  whether  the  gift  of 
a  savings-bank  book,  from  husband  to  wife,  causa  mortis,  is  valid 
without  delivery,  provided  the  book  is  at  the  time  of  the  alleged  gift 
already  in  the  possession  of  the  wife.  The  action  was  tried  before 
the  Chief  Justice,  and  he  ruled  that  to  constitute  a  valid  gift,  causa 
mortis,  there  must  be  a  delivery ;  that  if  the  property  "be  at  the  time 
already  in  the  possession  of  the  donee,  the  donor's  saying  to  the  donee, 
'You  may  have  it,'  or  'You  may  keep  it — it  shall  be  yours,'  does  not 
pass  the  property  in  the  case  of  a  gift  causa  mortis." 

We  think  this  ruling  was  correct.  If  the  act  of  delivery  was  for  no 
other  purpose  than  to  invest  the  donee  with  possession,  no  reason  is 
perceived  why  it  might  not  be  dispensed  with,  when  the  donee  al- 
ready had  possession.  But  such  is  not  its  only  purpose.  It  is  essen- 
tial in  order  to  distinguish  a  gift,  causa  mortis,  from  a  legacy.  With- 
out an  act  of  delivery,  an  oral  disposition  of  property,  in  contempla- 
tion of  death,  could  be  sustained  only  as  a  nuncupative  will ;  and  in 
the  manner  and  with  the  limitations  provided  for  such  wills.  Deliv- 
ery is  also  important  as  evidence  of  deliberation  and  intention.  It  is 
a  test  of  sincerity  and  distinguishes  idle  talk  from  serious  purposes. 
And  it  makes  fraud  and  perjury  more  difficult.  Mere  words  are  easily 
misrepresented.  Even  the  change  of  an  emphasis  may  make  them  con- 
vey a  meaning  different  from  what  the  speaker  intended.  Not  so  of 
an  act  of  delivery.  Like  the  delivery  of  a  turf,  or  the  delivery  of  a 
twig  in  the  ancient  mode  of  conveying  estates  or  the  delivery  of  a 
kernel  of  corn,  or  the  payment  of  one  cent  of  the  purchase  money,  to 
make  valid  a  contract  for  the  sale  of  a  cargo  of  grain,  an  act  of  de- 
livery accomplishes  that  which  words  alone  can  not  accomplish.  Gifts, 
causa  mortis,  ought  not  to  be  encouraged.  They  are  often  sustained 
bv  fraud  and  perjury.  It  was  an  attempt  to  sustain  such  a  gift  by 
fraud  and  perjury  that  led  to  the  enactment  of  the  statute  for  the  pre- 
vention of  fraud  and  perjury.     *     *     * 

We  are  aware  that  some  text  writers  have  assumed  that  when  the 
property  is  already  in  the  possession  of  the  donee,  a  delivery  is  not 
necessary.     But  the  cases  cited  in  support  of  the  doctrine  nearly  all 

"  See  Reynolds'  Adm'r  v.  Reynolds,  92  Ky.  556,  IS  S.  W.  517  (1S92). 
'8  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  7)  GIFT  255 

relate  to  gifts,  inter  vivos,  and  not  to  gifts,  causa  mortis.  A  gift  inter 
vivos,  may  be  sustained  witliout  a  distinct  act  of  delivery  at  the  time 
of  the  gift,  if  the  property  is  then  in  the  possession  of  the  donee,  and 
the  gift  is  supported  by  long  acquiescence  of  the  donor,  or  other 
entirely  satisfactory  evidence.  *  *  *  "  But  the  question  we  are 
now  considering  is  not  whether  a  gift,  inter  vivos,  can  be  sustained 
without  a  distinct  act  of  delivery,  but  whether  such  a  relaxation  of  the 
law  can  be  allowed  in  the  case  of  a  gift  causa  mortis.  We  think  not. 
Reason  and  the  weight  of  authority  are  opposed  to  such  a  relaxa- 
tion.    *     *     * 

It  is  the  opinion  of  the  court  that  the  gift  of  a  savings-bank  book, 
causa  mortis,  to  be  valid,  must  be  accompanied  by  an  actual  delivery 
of  the  book  from  the  donor  to  the  donee,  or  to  some  one  for  the  donee : 
and  that  the  delivery  must  be  made  for  the  express  purpose  of  con- 
summating the  gift ;  and  that  a  previous  and  continuing  possession  by 
the  donee  is  not  sufficient;  and  that  in  this,  and  in  all  particulars,  the 
rulings  in  the  court  below  were  correct ;  and  that  no  cause  exists  for 
granting  a  new  trial. 

Motion  and  exceptions  overruled.'* 


LIEBE  v.  BATTMANN. 
(Supreme  Court  of  Oregon,  1898.    33  Or.  241,  54  Pac.  179,  72  Am.  St.  Eep.  705.) 

[Bill  of  mortgage  foreclosure  by  the  plaintiff  as  executor  of  R.  G. 
Closter,  deceased,  against  Battmann  as  maker  of  the  note  and  mort- 
gage and  Charles  A.  Schutz  who  claimed  tlie  note  by  virtue  of  a  gift 
thereof  to  him  by  the  said  Closter.] 

WoLVERTOx.  J.'^  *  *  *  f^he  facts  upon  which  it  is  sought  to 
establish  the  gift  are,  in  substance,  as  follows :  Closter  and  Schutz 
had  been  intimate  friends  for  many  years,  and  on  Friday,  August  21, 
1896,  were  living  in  a  house  which  they  had  rented  together,  and  where 
they  ate  at  the  same  table.  There  was  a  large  room  in  the  building, 
opening  out  of  which  was  a  bedroom  on  the  east  and  another  on  the 
south.  Closter  occupied  the  east  room,  and  Schutz  the  one  on  the  south. 
Schutz,  who  had  been  out  the  night  before,  came  home  about  5  o'clock 
in  the  morning,  and,  after  a  brief  but  friendly  conversation  with  Clos- 
ter, retired  to  his  room,  and  about  6  o'clock  heard  the  report  of  a  pistol 
shot  coming  from  Closter's  room,  to  which  he  hastened,  and  found 
that  Closter  had  shot  himself  in  the  left  side  of  the  head,  near  the 
temple.    A  physician  being  called  Closter  requested  him  "to  make  short 

'9  Ace:  Winter  v.  Winter.  4  L.  T.  R.  639  (1861) ;  Wing  v.  Merchant  57  Sle. 
383  (1869) ;    Providence  Institution  for  Savings  v.  Taft,  14  R.  I.  502  (1884). 

80  Contra,  Cain  v.  Moon,  [1896]  2  Q.  B.  283. 

81  The  statement  of  facts  Is  abridged  and  parts  of  the  opinions  are  omitted. 


25G  ACQUISITION   OF   OWNERSHIP  (Cll.  4 

work  of  it,  that  he  wanted  to  die" ;  but  shortly  he  passed  into  a  coma- 
tose state,  from  which  he  never  ralhed,  and  died  four  days  thereafter. 
On  a  small  table  at  the  head  of  his  bed  was  found  a  couple  of  large 
envelopes,  both  sealed  and  addressed,  one  to  Charles  A.  Schutz,  Esq., 
and  the  ether  to  Mrs.  Bertha  Vierea.  Schutz  handed  these  envelopes 
to  the  plaintiff,  who  kept  them  until  the  death  of  Closter,  when  the 
one  addressed  to  Schutz  was  opened,  and  found  to  contain  the  said 
note  for  $1,175,  indorsed  "R.  G.  Closter"  in  ink.     *     *     * 

Is  there  in  this  testimony  sufficient  to  establish  a  gift  of  the  note  and 
mortgage  by  Closter  to  Schutz?  The  transaction  is  not  supported  by 
any  valuable  consideration,  nor  does  anybody  pretend  that  it  is ;  so 
that,  if  there  is  no  gift,  Schutz's  title  must  fail.  Nor  can  it  make  any 
material  difference  what  may  be  the  quality  of  the  gift,  whether  inter 
vivos  or  causa  mortis,  as  the  essential  elements  which  go  to  establish 
it  in  either  case  are  the  same,  in  so  far  as  the  pivotal  facts  give  cast 
to  the  transaction.  There  must  be  an  intention  in  the  donor  to  give, 
and  a  delivery,  to  pass  the  title.  If  causa  mortis,  these  things  must 
have  been  done  under  the  apprehension  of  death  from  some  present 
disease  or  some  impending  peril,  but  it  is  revocable  and  becomes  void 
by  recovery,  escape  from  such  peril,  or  the  death  of  the  donee  before 
the  donor;  Ridden  v.  Thrall,  125  N.  Y.  572,  26  N.  E.  627,  11  L.  R.  A. 
684,  21  Am.  St.  Rep.  758.  We  need  only  to  consider  the  intention  and 
the  alleged  delivery.  That  there  was  an  intent  to  give  we  think  is  per- 
fectly manifest  from  the  evidence  adduced.     *     *     * 

There  must  be  a  parting  with  the  dominion  over  the  subject  mat- 
ter of  the  pretended  gift,  with  a  present  design  that  the  title  shall  pass 
out  of  the  donor  and  to  the  donee,  and  this  so  fully  and  completely,  to 
all  intents  and  purposes,  that,  if  the  donor  again  resumes  control  over 
it  without  the  consent  of  the  donee,  he  becomes  a  trespasser,  for  which 
he  incurs  a  liability  over  to  the  donee  except  after  revocation  of  a  gift 
causa  mortis.  And  so  essential  is  delivery  as  a  factor  in  the  transac- 
tion that  it  is  said:  "Intention  cannot  supply  it;  words  cannot  sup- 
ply it ;  actions  cannot  supply  it.  It  is  an  indispensable  requisite,  with- 
out which  the  gift  fails,  regardless  of  the  consequences."     *     *     * 

Measured  by  the  requirements  of  law,  there  was  no  delivery  of 
the  note  to  Schutz,  nor  does  the  fact  that  the  note  was  indorsed  dis- 
pense with  its  necessity.  Such  an  indorsement,  without  consideration, 
could  not  have  stronger  force  or  operation  than  a  parol  gift  or  by 
writing  not  under  seal.  Whatever  might  have  been  Cluster's  inten- 
tion in  writing  his  name  on  the  back  of  the  note,  he  could  revoke  the 
gift  before  delivery  simply  by  retaining  the  note,  and  Schutz  could 
not  assert  title  thereto  until  something  else  had  been  done  to  com- 
plete the  transaction.  It  cannot  be  said  that  Closter  ever  parted  with 
his  dominion.  If  so,  when  did  it  occur?  Assuredly  not  before  he 
made  the  attempt  upon  his  life,  for  Schutz  was  not  present  to  re- 
ceive it.     Placing  the  note  upon  his  table  in  the  sealed  envelope  ad- 


Sec.  7)  GIFT  257 

dressed  to  Schutz  was  not  a  relinquishment  of  possession,  bec*use  it 
remained  with  him  and  under  his  complete  and  absolute  control.  He 
could,  at  any  instant,  while  conscious  and  in  his  right  mind,  have 
bestowed  it  upon  any  other  person,  at  his  liking,  and  Schutz  could  not 
have  prevented,  nor  would  it  have  been  an  invasion  of  any  rights 
acquired  by  reason  of  the  indorsement  and  ensealment  within  the  ad- 
dressed envelope.  And  there  could  have  been  none  after  the  shooting, 
for  the  note  was  not  taken  from  the  table  nor  mentioned  by  the  de- 
ceased. The  case  can  be  no  stronger  than  if  the  sealed  envelope  had 
been  found  among  his  other  effects,  for  it  was  upon  his  table  and 
within  a  room  occupied  solely  by  him.  It  was  his  intention,  no  doubt, 
that  Schutz  should  find  and  appropriate  it,  but  the  right  to  make  an 
appropriation  did  not  accrue  within  the  lifetime  of  Closter,  and  Schutz 
cannot  now  claim  the  property  as  against  Closter's  personal  represen- 
tative. The  decree  of  the  court  below  will  therefore  be  reversed,  and 
the  one  here  entered  foreclosing  the  mortgage. 
Reversed. 

On  Petition  for  Rehearing. 

WoLVERTON,  C.  J.  An  elaborate  and  exhaustive  petition  for  re- 
hearing has  been  filed  in  this  case,  and  we  are  constrained  to  review 
to  some  extent  the  salient  points  involved.  Counsel  say  the  gift  was 
not  consummated  until  the  subject  thereof  reached  the  hands  of  Schutz, 
but  that,  having  acquired  possession  of  it  prior  to  the  death  of  Closter, 
it  became  his  property  at  the  instant  of  his  taking  possession.  This 
view  overlooks  the  fact  that  Closter  was  not  then  in  a  mental  condition 
to  bestow  anything.  It  was  Closter's  purpose ,  no  doubt,  to  make  the 
donation  in  contemplation  of  death,  not  that  he  understood  the  dis- 
tinction between  a  donatio  mortis  causa  and  a  gift  inter  vivos,  but 
such  was  the  nature  of  the  plan  adopted,  which  he  supposed  would 
effect  a  change  of  ownership  in  the  property.  Death  was  absolutely 
necessary  to  render  the  gift  in  that  form  irrevocable  upon  his  part, 
for  it  must  be  remembered  that  such  a  gift  is  always  conditional  un- 
til the  event  in  contemplation  of  which  it  is  made  has  actually  come  to 
pass.  This,  as  we  have  shown  in  the  main  opinion,  is  the  distinctive 
element  which  determines  the  nature  of  the  gift.  The  object  was 
to  make  the  gift,  but  to  retain  the  title  while  living.  None  other  is 
manifest  from  his  acts.  This  becomes  apparent  from  the  fact  of  his 
leaving  the  subject  thereof  on  the  table  in  his  own  room  for  the  donee 
to  discover  and  appropriate  after  he  had  put  an  end  to  his  own  exist- 
ence. But  tlie  gift  must  fail  as  a  gift  causa  mortis  simply  because 
there  was  no  delivery.  It  is  said  that  the  donee  discovered  the  property 
and  appropriated  it  while  Closter  was  yet  living,  but  it  was  not  his 
intention  that  the  donee  should  thus  or  otherwise  appropriate  it  while 
he  lived,  so  that  its  possession  prior  to  Closter's  death  was  obtained 
contrary  to  his  manifest  intention.  True,  there  was  an  ultimate  inten- 
Bic  .Pers.Pbop. — 17 


258  ACQUISITION   OF  OWNERSHIP  (Ch.  4 

tion  to  give,  but  none  of  executing  the  gift  at  that  specific  time,  or 
that  it  should  be  consummated  in  the  particular  manner  which  it  is 
claimed  is  sufficient  to  complete  the  transaction  and  pass  the  title. 
The  ultimate  intention  is  plain  enough,  but  the  manner  adopted  for 
the  consummation  of  the  gift  was  legally  insufficient,  as  it  contemplat- 
ed no  change  in  title,  either  conditionally  or  unconditionally,  prior  to 
his  decease.  When  Mr.  Schutz  possessed  himself  of  the  envelope  and 
its  contents  he  did  that  which  the  donor  did  not  purpose  should  be 
done, — for  it  was  designed,  as  we  have  said,  that  he  should  have  them 
only  after  his  death,  not  before;  so  that  he  took  them  without  the 
donor's  consent,  and  there  could  be  no  delivery  in  the  absence  of  such 
consent.  If  the  note  indorsed  and  inclosed  in  the  envelope,  addressed 
as  it  was,  had  been  handed  by  Closter  to  Schutz  without  saying  any- 
thing, the  act  would  have  disclosed  the  purpose  of  the  donor,  and 
the  gift  would  have  been  complete,  as  the  delivery  would  have  been 
accomplished.  So,  it  may  be  admitted  that  if  Closter  had  left  the 
note  upon  a  stump,  or  a  by-way,  to  use  the  illustration  of  counsel, 
intending  that  Schutz  should  come  along  and  discover  and  appro- 
priate it,  when  he  had  possessed  himself  of  it,  if  within  the  lifetime 
of  Closter,  the  delivery  would  have  been  completed  and  the  gift  con- 
summated.*^ 

But  suppose,  in  the  first  instance,  Closter  had  subjoined  a  condition, 
when  he  handed  the  note  to  Schutz,  that  it  should  be  and  remain  the 
property  of  the  donor  while  living,  and  when  dead  it  should  pass  to 
the  donee ;  there  would  be  no  gift,  because  there  would  be  no  purpose 
of  passing  title  within  the  lifetime  of  the  donor.  The  transaction  would 
partake  of  the  nature  of  a  testamentary  disposition,  but  could  not  op- 
erate as  a  donatio  mortis  causa,  or  a  gift  inter  vivos,  as  in  either  case, 
the  title  must  pass  within  the  lifetime  of  the  donor,  although  in  the 
former  it  is  subject  to  revocation.  Basket  v.  Hassell,  107  U.  S.  602,  2 
Sup^  Ct.  415,  27  L.  Ed.  500.  So,  in  the  second  instance,  suppose  it 
was  intended,  and  in  some  way  made  clearly  apparent,  that  Schutz 
should,  subsequent  to  the  death  of  the  donor,  and  in  that  event  only, 
have  possessed  himself  of  the  property,  and  then  appropriated  it, 
could  it  be  said  that  there  had  been  a  delivery,  if  he  had  come  by  and 
obtained  it  prior  to  Closter's  demise?  In  such  case,  like  the  one  at 
bar,  there  would  have  been  no  intention  that  the  title  should  thus  pass, 
and  without  the  intention  there  could  have  been  no  delivery  prior  to 

82  A.  said  to  B.,  his  daughter,  "I  give  you  the  carriage."  This  was  said 
in  the  house,  the  carriage  being  in  a  nearby  shed.  Thereafter  B.  continued  to 
talve  care  of  the  c-arrlage  as  she  had  formerly  done,  and  it  was  used  by  the 
family  as  before,  except  that  'A.'s  permission  was  no  longer  aslied.  Held  a 
valid  gift.     Fletcher  v.  Fletcher,  55  Vt.  325  (1883). 

A.  and  B.  occupied  an  office  together.  A.  killed  himself  at  his  house,  and, 
while  dying,  said  to  B.,  "I  give  you  all  the  contents  of  the  office.'  B.  did 
not  go  to  the  office  until  two  days  later,  after  A.'s  death.  Held  no  gift  Al- 
len V.  Allen,  75  Minn.  116,  77  N.  W.  567,  74  Am.  St.  Rep.  442  (1S9S). 

See  Coleman  v.  Parker,  114  Mass.  30  (1S73). 


Sec.  7)  GIFT  259 

his  death.  A  mere  passing  of  the  naked  possession  does  not  come 
up  to  the  requirements  of  a  good  deHvery.  It  must  be  a  transfer  of 
the  property  with  a  purpose  on  the  part  of  the  donor  to  rehnquish  his 
dominion  over  it,  and  thereby  to  part  with  and  divest  himself  of  the 
title.     *     *     * 

The  quotation  from  Caldwell  v.  Wilson,  2  Speers  (S.  C.)  75,  does  not 
seem  to  be  understood.  Two  methods  of  delivery  are  defined — one, 
by  actual  tradition  from  hand  to  hand ;  the  other,  by  an  expression  of 
the  donor's  willingness  that  the  donee  should  take  when  the  chat- 
tel was  present  and  in  a  situation  to  be  taken  by  either  party.  In  the 
latter  there  is  involved  no  actual  transfer  of  possession.  The  donor 
says,  "there  is  the  chattel  (it  being  present) ;  take  it ;"  and  tlie  donee 
assents.  This,  the  authority  holds,  would  be  equivalent  to  an  actual 
manual  transfer  of  possession  from  hand  to  hand.  Hence  we  said 
the  definition  implied  the  mutual  presence  of  the  donor  and  donee. 
Of  course,  the  assent  or  acceptance  of  the  donee  may  be  through  an 
agent.  But  in  this  case,  there  being  no  agent  for  either  party,  there 
could  have  been  no  delivery  until  Schutz  took  manual  possession,  and 
it  is  the  delivery  accomplished  by  actual  tradition  from  hand  to  hand 
that  the  counsel  is  contending  for.  The  vice  of  the  argument,  however, 
lies  in  supposing  that  title  passed  at  the  instant  the  donee  came  into 
possession  of  the  note  and  mortgage,  it  being  before  the  donor  had 
ceased  to  breathe,  notwithstanding  the  fact  that  he  was  then  irrational, 
and  made  no  mention,  either  directly,  or  indirectly,  touching  the  prop- 
erty, or  of  its  further  disposal  by  him.  It  was  the  purpose  of  Closter 
to  take  his  life  instantly.  If  he  had  thus  accomplished  his  purpose, 
it  is  admitted  there  would  have  been  no  delivery  by  reason  of  the 
donee's  subsequently  finding  and  appropriating  the  property.  Although 
he  lived  some  four  days,  he  never  manifested  any  other  or  further 
intention  respecting  it;  so  that  we  are  relegated  to  the  primary  mani- 
festation of  his  ultimate  intention,  and  it  leaves  no  new  or  addition- 
al act  by  which  to  signalize  the  transaction  as  a  gift  in  any  aspect.  The 
petition  will  be  denied. 

Rehearing  denied. ^^ 

83  Ace:  Jones  v.  Crisp,  109  Md.  30,  71  Atl.  515  (190S);  Leonard  v.  Adm'r 
of  Kebler,  50  Ohio  St.  444,  34  N.  E.  659  (1893).  See  Howe  v.  Ripka,  199  Mass. 
359,  85  N.  E.  SS  (1908). 

For  an  elaborate  discussion  of  the  intent  and  delivery  necessary  to  a  gift, 
see  Parker  v.  Copland,  70  N.  J.  Eq.  685,  64  Atl.  129  (1906). 


2G0  ACQUISITION   OF   OWNERSHIP  (Cll.  4 

McEWEN  V.  TROOST  et  al. 
(Supreme  Court  of  Tennessee,  1S53.     1  Sneed  [33  Tcnn.]  isG.) 

[Bill  of  interpleader  by  the  administrator  of  the  estate  of  Gerard 
Troost,  deceased,  to  determine  the  title  to  certain  property.] 

ToTTEN,  J.**  It  appears  from  the  bill  that  Dr.  Gerard  Troost  died 
intestate  at  Nashville,  August  15,  1850,  and  that  plaintiff  was  appoint- 
ed the  administrator  of  his  estate.  It  consists  of  funds,  negro  slaves 
and  other  effects.  The  bill  then  states  that  intestate  died  possessed 
of  a  very  valuable  collection  of  natural  and  scientific  specimens, 
*     *     *     also  of  a  large     *     *     *     library.     *     *     * 

That  on  the  22d  of  June,  1840,  the  intestate  executed  to  his  two 
children,  Lewis  Troost  and  Caroline  Stein,  a  deed  of  gift  for  said 
cabinet  and  library ;  that  the  deed  was  duly  acknowledged  and  regis- 
tered, a  certified  copy  whereof  is  exhibited  with  the  bill ;  that  said 
cabinet  and  library  were  not  delivered  into  the  actual  possession  of 
the  donees,  but  remained  in  the  possession  and  use  of  said  intestate  to 
the  time  of  his  death,  and  are  now  in  the  possession  of  his  administra- 

■(-/-v*"  "T-  'K  "1* 

The  answers  of  defendants  admit,  substantially,  the  facts  stated  in 
the  bill,  except  that  the  donees  say  that  the  cabinet,  library  and  ar- 
ticles narped  in  said  deed  of  gift,  were,  in  legal  efifect,  delivered  to 
them;  and  that  they  permitted  the  same  to  remain  with  Gerard  Troost 
as  a  depository  for  them.     *     *     * 

Counsel  for  the  plaintiff  insist  that  the  deed  was  void,  because  the 
cabinet  and  library  were  not,  at  the  time,  delivered  to  the  donees. 

It  is  true,  that  delivery  is  essential  to  the  validity  of  a  parol  gift 
of  a  chattel  or  chose  in  action,  whether  it  be  a  gift  inter  vivos,  or 
causa  mortis;  and  without  delivery  and  a  transfer  of  the  possession, 
the  title  does  not  pass  to  the  donee.  The  delivery  must  be  according 
to  the  nature  of  tlie  thing,  as  the  actual  delivery  of  a  sum  of  money, 
the  delivery  of  the  key  of  a  trunk,  of  a  room,  and  the  like.  The  ef- 
fect of  a  valid  delivery  is  to  place  the  subject  of  the  gift  under  the 
control  and  dominion  of  the  donee,  and  his  title  and  right  to  pos- 
session become  absolute  and  irrevocable.     *     *     * 

The  execution  and  delivery  of  the  deed  are  considered  to  be  equiva- 
lent to  the  delivery  of  tlie  subject  of  the  gift.  By  our  law  the  deed  of 
gift  is  required  to  be  registered,  by  which  notice  of  the  gift  is  given  to 
creditors  and  purchasers.  1831,  c.  90,  §  1.  No  inconvenience,  there- 
fore, can  result  in  the  practical  operation  of  the  rule.  As  between  the 
parties,  there  can  be  no  reason  why  the  deed  should  not  be  conclusive 
as  to  the  intention  of  the  donor,  and  the  fact  that  the  gift  was  made. 
Its  execution  is  a  deliberate  act,  indicating  the  purpose  of  the  donor  as 

8*  Tart  of  the  opinion  is  omitted. 


1 


Sec.  7)  GIFT  261 

clearly  as  if  there  had  been  an  actual  delivery  of  the  subject  of  the  gift. 
Now,  in  the  present  case  there  was  no  actual  delivery  of  the  cabinet 
and  library;  they  remained  in  the  possession  and  use  of  the  donor 
until  the  time  of  his  death ;  but  the  donees  say  it  was  with  their  con- 
sent. If  the  gift  were  in  parol  it  would  be  clearly  invalid.  But  the 
gift  is  by  deed,  and  may,  therefore,  be  valid  without  actual  delivery 
of  the  subject  of  the  gift.'"     *     *     * 


MAHONEY  V.  MARTIN  et  al. 
(Supreme  Court  of  Kansas,  100.5.  72  Kan.  406,  S3  Pac.  9S2.) 
Graves,  J.'*  The  question  involved  in  this  case  is  whether  or  not 
the  property  in  controversy  was  transferred  to  the  plaintiff  in  error  by 
virtue  of  a  completed  gift.  Mary  A.  Martin,  the  alleged  donor  of  the 
property,  was  at  the  time  of  her  death  the  wife  of  Peter  Martin,  who 
was  insane,  and  he  would  take  by  descent  whatever  property  his  wife 
might  have  at  the  time  of  her  death.  Peter  Martin  had  property  in  his 
own  right  sufficient  for  his  comfortable  support,  and  his  wife  did  not 
want  her  property  to  go  to  the  relatives  of  her  husband,  which  result 
would  follow  if  she  should  not  outlive  him.  In  the  month  of  March. 
1903,  she  was  very  sick,  and  expected  to  die.  Her  nearest  relatives  were 
a  brother,  the  plaintiff  in  error,  who  lived  in  North  Dakota,  and  a  sister, 
who  resided  in  Canada.  The  brother  was  present  during  her  last  sick- 
ness, and  she  desired  to  leave  her  property  to  him.  She  knew  that  she 
could  not  by  will  prevent  one-half  of  it  from  going  to  her  husband,  and 
at  his  death  to  his  relatives,  and  she  therefore  sought  the  advice  of  a 
lawyer  for  some  legal  way  to  carry  out  her  wish.  Upon  such  advice  she 
executed  and  delivered  to  her  brother  the  bill  of  sale  hereinafter  set 
forth.  Soon  afterwards  she  died.  A  controversy  thereafter  arose  be- 
tween her  brother  and  the  guardian  of  her  insane  husband  concerning 
the  ownership  of  the  property,  which  resulted  in  the  bringing  of  this 
suit  by  the  brother.  Among  the  assets  of  Mary  A.  Martin  was  a  claim 
against  the  estate  of  her  insane  husband.  The  guardian  of  Peter  Mar- 
tin reduced  all  of  the  property  of  Mary  A.  Martin  to  possession,  and 
claimed  that  his  ward  was  the  owner  thereof.  This  suit  was  brought 
for  an  accounting  and  for  the  value  of  the  property. 

86  Ace:  McRae,  Adm'r  v.  Pegues,  Adm'r,  4  Ala.  158  (1842).  Contra,  Mc- 
Willie  V.  Van  Vaeter,  35  Miss.  42S,  72  Am.  Dec.  127  (1858). 

A.  executed  the  following  deed:  "I  give  to  B.  the  principal  of  a  note  for 
$700  signed  by  X.,  *  *  *  said  sum  to  be  given  to  B.  when  the  said  note 
falls  due."  A.  died  before  the  note  fell  due,  and  it  was  collected  by  his  ad- 
ministrator. Held,  B.  has  no  claim  against  the  administrator  for  the  pro- 
ceeds of  the  note.  Gammon  Tlieological  Seminary  v.  Robbins,  128  Ind.  85, 
27  N.  E.  341,  12  L.  R.  A.  506  (1891). 

Where  by  statute  seals  have  been  abolished  in  deeds  of  land,  an  Instrument 
of  gift,  not  under  seal,  has  been  held  to  pass  title.  Walker  v.  Crews,  73  Ala. 
412  (1882).    Compare  Ball,  Ex'r  v.  Wallace,  32  Ga.  170  (1S61). 

8»  Part  of  the  opinion  is  omitted. 


262  ACQUISITION   OP  OWNERSHIP  (Ch.  4 

Upon  the  trial,  which  was  had  without  a  jury,  the  court  found  and 
filed  findings  of  fact  and  its  legal  conclusions  as  follow :  "  *  *  * 
(10)  That  such  instrument  was  in  words  and  figures  as  follow,  to  wit: 
'Bill  of  Sale  of  Personal  Property.  Know  all  men  by  these  presents, 
that  Mary  A.  Martin,  in  consideration  of  one  dollar  and  other  consider- 
ation dollars  paid  by  J.  J.  Mahoney,  the  receipt  whereof  is  hereby  ac- 
knowledged, does  hereby  grant,  sell,  transfer,  and  deliver  unto  the  said 
J.  J.  Mahoney  the  following  goods  and  chattels,  viz. :  One  promissory 
note  for  $1,100,  or  more,  secured  by  real  estate  mortgage,  executed  by 
Thos.  Holmes  and  wife,  and  all  property  of  every  kind  and  description 
now  owned  by  me  or  in  which  I  am  in  any  wise  interested,  and  wher- 
ever situated  to  be  held  by  him  absolutely.  To  have  and  to  hold,  all  and 
singular,  the  said  goods  and  chattels,  to  the  said  J.  J.  Mahoney  and  his 
executors,  administrators,  and  assigns,  forever.  And  the  said  grantor 
hereby  covenants  with  the  said  grantee  that  she  is  the  lawful  owner  of 
said  goods  and  chattels ;  that  tliey  are  free  from  all  incumbrances ;  that 
she  has  good  right  to  sell  the  same  as  aforesaid,  and  that  she  will  war- 
rant and  defend  the  same  against  the  lawful  claims  and  demands  of  all 
persons  whomsoever.  In  witness  whereof,  the  said  grantor  has  here- 
unto set  her  hand  this  5th  day  of  March,  A.  D.  1903.  Mary  A.  Martin. 
Signed  and  delivered  in  presence  of  W.  T.  Greenwood.'  (11)  That  no 
consideration  was  paid  to  Mrs.  Martin  for  such  transfer,  and  that,  if 
it  operated  at  all,  it  was  as  a  gift,  and  not  a  sale.  (12)  That  at  the  time 
of  the  execution  of  said  written  instrument,  Mary  A.  Martin  was  of 
sound  mind  and  in  the  full  use  of  her  mental  faculties,  and  was  able 
to  read  the  English  language.  (121-0)  That  at  the  time  of  the  execution 
of  such  gift,  said  Mary  A.  Martin  expected  to  die  within  a  short  time, 
and  such  gift  was  made  by  her  in  contemplation  of  approaching  death. 
(13)  That  Mahoney  did  not  fully  make  up  his  mind  whether  to  accept 
such  gift  or  not  until  after  the  death  of  Mrs.  Martin ;  but  it  does  not 
appear  that  he  repudiated  it  or  expressed  any  active  dissent.  (14)  That 
finding  No.  13  is  based  entirely  on  the  testimony  of  J.  J.  Mahoney 
viewed  in  the  light  of  the  surrounding  circumstances,  as  disclosed  by 
the  other  findings  of  fact.     *     *     * 

"Conclusion  of  Law. 

"That  said  written  instrument  purporting  to  be  a  gift  of  all  her 
property  from  Mary  A.  Martin  to  J.  J.  Mahoney  is  void  and  of  no 
effect,  and  that  the  judgment  of  this  court  should  be  for  the  defend- 
ant." 

It  is  apparent  from  these  findings  of  fact,  that  Mary  A.  Martin,  felt 
that  her  death  was  at  hand,  and  in  contemplation  of  this  fact,  she 
wanted  to  dispose  of  her  property  so  diat  her  brother  would  have  it 
after  her  death.  In  case  of  her  death  the  brother  intended  to  take  the 
property.  It  is  easy  to  deduce  these  conclusions  from  the  findings  of 
the  court,  but  they  do  not  constitute  a  completed  gift.  The  court  evi- 
dently based  his  conclusion  of  law  upon  finding  of  fact  No.  13,  which 


Sec.  7)  GIFT  263 

finding  is  vigorously  attacked  by  the  plaintiff  in  error.  It  is  urged  that 
this  finding  is  not  sustained  by  the  evidence,  is  contrary  to  the  evidence, 
and  inconsistent  with  the  other  findings  of  fact.  No  gift  can  be  com- 
plete without  the  acceptance  thereof  by  the  donee.  Calvin  v.  Free,  66 
Kan.  470,  71  Pac.  823 ;  14  Am.  &  Eng.  Ency.  of  Law,  1015.  The  law 
presumes  such  acceptance  in  the  absence  of  evidence  to  the  contrar}'. 
When  this  fact  is  disputed  its  determination  will  depend  like  any  other 
question  of  fact  upon  the  evidence.  In  this  case,  the  question  of  ac- 
ceptance was  one  of  the  important  points  in  dispute.  The  court  found 
from  the  evidence  that  the  done©  did  not  accept  the  gift  during  the  life 
of  the  donor. 

The  evidence  upon  this  subject,  as  it  appears  in  the  record,  seems 
to  be  strongly  against  this  finding,  and  if  it  were  an  original  question 
here  depending  upon  the  testimony  presented  to  us,  we  would  be  in- 
clined to  decide  otherwise.  At  the  same  time  there  is  some  reason  for 
the  conclusion  that  only  a  gift  causa  mortis,  was  intended  by  both  par- 
ties. There  was  no  reason  why  Mrs.  Martin  should  wish  to  part  with 
all  of  her  property,  while  living,  and  it  seems  probable  that  her  brother 
did  not  expect  to  take  it  if  she  recovered.  It  appears  more  reasonable 
that  they  each  intended  the  gift  to  become  absolute,  upon  her  death, 
and  not  before.  It  also  appears  from  the  record  that  the  plaintiff,  up- 
on a  former  trial  involving  this  same  question,  gave  testimony  incon- 
sistent with  his  evidence  at  the  trial  of  this  case.  In  view  of  the  fact 
that  the  witness  was  present  in  court  during  his  examination  and  cross- 
examination,  as  to  this  discrepancy  in  his  testimony,  and  the  court  had 
an  opportunity  to  note  his  appearance  and  demeanor,  on  the  witness 
stand,  which  at  times  furnishes  strong  evidence  of  the  good  faith  and 
honesty  of  a  witness,  or  the  want  of  it,  not  discoverable  from  the  writ- ' 
ten  testimony  given,  we  feel  bound  to  adhere  to  the  oft-repeated  rule, 
that  a  finding  of  fact,  resting  upon  conflicting  or  inconsistent  evidence 
cannot  be  disturbed  by  this  court,  and  therefore  the  finding  is  sustained. 

This  conclusion  makes  it  necessary  to  affirm  the  judgment.  *  *  * 
All  the  Justices  concurring.*^ 

87  See  Bangs  v.  Browne,  149  Mich.  478,  112  N.  W.  1107  (1007). 

A.  deposited  $100  with  a  banli  in  B.'s  name,  A,  retaining  the  bank  boolj. 
In  an  action  to  determine  the  right  to  the  deposit  tlie  court  said:  "The  In- 
tention of  the  donor  to  malie  a  gift  is  open  to  inquiry,  and  the  acceptance  of 
it  by  the  donee  completes  a  contract  between  her  and  the  baiili.  and  cannot  be 
presumed,  but  must  be  shown."  Scott  v.  Berlishire  Co.  Sav.  Banli.  140  Mass. 
157,  165,  2  N.  E.  925  (ISSo). 

In  Malone  v.  Lebus,  116  Ky.  975,  77  S.  W.  ISO  (1903),  it  was  said  that  no 
acceptance  was  necessary  where  the  donee  was  insane.  The  same  rule  has 
been  laid  down  in  England  as  to  all  donees.  Standing  v.  Bowring,  L.  R.  31 
Ch.  Div.  2S2  (1SS5).  See,  also,  L.  &  C.  Banking  Co.  v.  L.  &  R.  P.  Bank,  L.  R.  21 
Q.  B.  D.  535  (1888). 

The  transfer  of  choses  in  action  is  dealt  with  in  the  subjects  of  contracts, 
trusts,  and  negotiable  instruments.  In  general,  on  gifts  of  choses  in  action 
in  addition  to  cases  already  cited,  see  Telford  v.  Patton.  144  111.  Oil,  33  N.  B. 
1119  (1892);  Cook  v.  Lum,  Adm'r,  55  N.  J.  Law,  373,  26  Atl.  803  (1803); 
Basket  v.  Hassell,  107  U.  S.  C02,  2  Sup.  Ct.  415,  27  L.  Ed.  500  (1SS2). 


204  FIXTURES  (Ch.  i 

CHAPTER  V 
FIXTURES 


SECTION  1.— WHEN  CHATTELS  BECOME  FIXTURES 


LIPSKY  V.  BORGMANN 

(Supreme  Court  of  Wisconsin,  ISSl.    52  Wis.  256,  9  N.  W.  158, 
38  Am.  Rep.  735.) 

[Action  against  the  defendant  for  entering  upon  the  land  of  tlie 
plaintiff  and  taking  away  and  converting  to  the  use  of  the  defendant 
a  wooden  building  situate  thereon.  The  defendant  justified  as  sheriff 
by  virtue  of  a  levy  against  the  personal  property  of  the  plaintiff,  and 
contended  that  the  building  in  question  was  personal  property. 

The  trial  court  ruled  that  the  building  was  realty;  and  a  verdict 
was  given  for  the  plaintiff.     Defendant  appealed.] 

Orton,  J.i  *  *  *  There  is  a  dwelling-house  on  the  land,  oc- 
cupied by  the  plaintiff  and  his  family  as  a  residence,  and  used  also  as 
a  saloon.  The  building  in  question  is  erected  on  one  side  of  this  main 
building,  and  next  to  the  saloon,  and  built  there  by  the  plaintiff  for  the 
purpose  of  being  used  in  connection  with  the  saloon  as  a  dancing  hall. 
It  is  thirty-two  feet  square,  the  sills  are  fastened  together  at  the  ends 
with  nails  or  spikes,  the  studding  is  fastened  to  the  sills  in  the  same 
way,  and  four  or  five  feet  apart,  and  on  the  top  of  the  studding  are 
fastened  the  plates  in  the  same  way ;  and  the  sills  and  plates  are 
thirty-two  feet  in  length,  and  two  by  eight  or  two  by  ten  inches  square. 
The  sills  rest  at  some  places  on  die  ground,  and  at  other  places  on 
cedar  posts  set  into  the  ground,  and  on  cedar  railroad  ties  and  stones. 
A  floor  is  laid  over  the  whole  space,  in  the  center  of  which  stands  a 
post  eight  feet  high,  and  six  by  eight  inches  square,  from  the  top 
of  which  extend  four  rafters  to  the  plates.  The  roof  is  intended  to 
be  square  and  four-cornered,  and  now  consists  of  brush.  There  is 
a  space  between  the  buildings,  and  in  it  are  constructed  seats  for  the 
musicians,  twelve  feet  long,  upon  cross  pieces  fastened  to  both  build- 
ings, and  a  door  is  intended  to  open  from  the  saloon  into  the  dancing 

I  Part  of  the  opinion  is  omitted. 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTURES  265 

hall.  It  is  in  an  unfinished  condition,  but  used  for  the  purpose  in- 
tended ;  and  it  is  intended  to  be  made  more  complete  and  permanent, 
and  to  permanently  remain,  to  be  used  in  connection  with  the  main 
building  for  domestic  purposes,  and,  in  connection  with  the  saloon 
business,  as  a  dancing  hall.  The  testimony  on  behalf  of  the  defend- 
ant as  to  the  frail  character  of  this  building,  and  the  testimony  of- 
fered by  him  and  rejected,  as  to  similar  structures  and  how  they  were 
regarded,  do  not  in  the  least  militate  against  this  statement  of  the  evi- 
dence. As  the  circuit  court  virtually  took  the  question  from  the  jury, 
and  decided  that  from  this  evidence  this  building  was  a  fixture,  the 
question  here  is.  Would  the  jury  have  been  justified  in  finding  other- 
wise? or,  in  other  words.  Would  the  verdict  be  allowed  to  stand,  on 
motion  for  a  new  trial,  if  they  had  so  found?  If  not,  the  circuit  court 
committed  no  error  in  taking  the  question  from  the  jury  and  so  de- 
ciding. From  the  character,  situation  and  intended  use  of  this  build- 
ing, as  disclosed  by  this  evidence,  there  can  be  no  question  that  it 
was, affixed  to  the  soil  and  is  a  part  of  the  realty.  By  the  current  of 
authorities  it  has  all  the  requisites  to  make  it  such.  It  was  constructed 
by  the  owner  of  the  land.  It  has  sufficient  actual  physical  attachment 
to  the  main  building  and  tlie  soil,  and  was  intended  to  be  permanent, 
and  to  be  always  used,  not  only  with  the  main  building,  but  for  sim- 
ilar purposes,  and  not  intended  ever  to  be  removed.  *  *  * 
Judgment  affirmed. - 


McREA  V.  CENTRAL  NAT.  BANK  OF  TROY. 
(Court  of  Appeals  of  Xew  York,  1S7G.    66  N.  X.  4S9.) 

This  action  was  brought  by  plaintiff  as  mortgagee,  and  claiming  un- 
der a  mortgage  upon  real  estate  against  defendants,  who  are  judg- 
ment creditors  of  the  mortgagor,  and  the  sheriff  holding  executions, 
issued  on  their  judgments,  to  restrain  them  from  selling  on  said  ex- 
ecutions certain  machinery  advertised  to  be  sold  as  personal  property, 
which  plaintiff  claimed  to  be  part  of  the  realty. 

The  premises  were  fonnerly  owned  by  plaintiff,  and  he  erected 
thereon  a  building  as  a  twine  factory,  specially  adapted  for  the  ma- 


2  Ace:  Salter  v.  Sample,  71  111.  430  (1S74) ;  Madigan  v.  McCarthy,  lOS 
Mass.  376,  11  Am.  Rep.  371  (1S71). 

Contra,  The  King  v.  Otley,  1  B.  &  Ad.  161  (1S30). 

Small  sheds,  merely  resting  upon  the  soil,  are  personalty.  Carlin  v.  Rltter, 
68  Md.  47S,  13  Atl.  370,  16  Atl.  301,  6  Am.  St.  Rep.  467  (18SS).  So  a  col- 
lapsible house.  O'Donnell  v.  Hitchcock,  IIS  Mass.  401  (1875).  Compare  State 
Savings  Bank  v.  Kercheval,  65  Mo.  682,  27  Am.  Rep.  310  (1877), 


266  FIXTURES  (Ch.  5 

chinery  used  in  the  business  of  manufacturing  twine,  and  placed  there- 
in the  machinery  in  question,  as  he  testified,  "for  permanent  use."  The 
machinerj^  consisted  of  the  various  machines  necessary  for  and  adapt- 
ed to  that  business.  The  plaintiff  carried  on  the  business  of  manu- 
facturing twine  for  several  years,  using  the  building  and  operating  the 
macliinery. 

On  the  14th  day  of  November,  1872,  he  contracted  to  sell  the  prem- 
ises to  one  George  Catlin  for  $28,000.  The  contract  described  the 
property  as  follows : 

"All  that  real  estate  situated  in  said  Johnsonville :  First,  the  twine 
factory  and  flax  mill,  and  blacksmith  shop  bounded  as  follows : 
*  *  *  Togetlier  with  all  the  machinery,  tools  and  fixtures  belong- 
ing to  the  party  of  the  first  part,  and  all  water  privileges  deeded  to 
him  on  his  purchase  of  said  real  estate." 

On  the  1st  day  of  January,  1873,  the  premises  were  conveyed  by 
McRea  to  Catlin  by  two  deeds,  and  a  mortgage  executed  and  delivered 
back  by  Catlin  to  McRea  for  $21,100,  the  balance  of  the  purchase- 
money. 

The  deeds  and  mortgages  were  drawn  by  a  Mr.  Merrill.  After  they 
were  finished  Mr.  Catlin  read  over  the  deeds,  and  saw  no  mention 
was  made  of  the  machinery,  and  asked  McRea  if  he  did  not  intend 
that  should  pass.  To  this  McRea  replied  he  did.  Mr.  Merrill  then 
suggested  that  the  "easiest  way"  or  the  "best  way"  to  fix  it  was  to 
make  a  separate  bill  of  sale,  which  was  done.  No  separate  mortgage 
of  the  machinery  was  taken.  Some  time  after  this,  in  January,  1873, 
Catlin  conveyed  one-half  of  the  premises  to  Christopher  A.  Banker, 
and  also  gave  to  him  a  bill  of  sale  for  one-half  of  the  machinery.  De- 
fendant The  Central  Bank  of  Troy  recovered  judgment  against  Catlin 
&  Banker,  and  issued  executions  to  the  defendant  Quackenbush,  as 
sheriflf,  who  seized  the  property  described  in  the  complaint. 

The  action  seeks  to  restrain  that  sale. 

The  court  found,  in  reference  to  the  character  of  the  machinery,  as 
follows : 

"That  the  machinery  mentioned  and  enumerated  in  the  complaint 
and  located  in  the  twine  mill,  were  and  are  fixtures  and  part  of  the 
freehold  conveyed  by  the  plaintiff  to  George  O.  Catlin,  and  is  not  per- 
sonal property ;  and  as  facts  showing  that  these  are  fixtures,  I  further 
find  (a)  that  the  building  in  which  the  machinery  was,  was  erected  for 
the  purpose  of  a  twine  factory,  and  the  manufacturing  specially  adapt- 
ed to  it  and  used  with  it;  (b)  that  the  original  intention  of  annexation 
was  to  make  this  machinery  permanently  a  part  of  the  building  and 
this  freehold;  (c)  that  the  mortgage  under  which  the  plaintiff  claims 
title,  was  to  secure  to  him  the  payment  of  the  purchase-money  of  the 
premises  described  therein,  and  w^as  taken  by  him  and  given  to  him 


Sec.  1)  WHEN    CHATTELS   BECOME  FIXTURES  207 

with  the  intention  of  holding  the  machinery  in  question  as  part  of  the 
realty  and  not  as  personal  property." 

And  as  conclusion  of  law,  that  plaintiff  was  entitled  to  the  relief 
sought.     *     *     *  I  ■ 

The  court  was  requested  to  find :  "That  each  of  the  machines  men- 
tioned in  the  complaint,  with  the  exception  of  the  two  'iron  softeners' 
was  a  machine  complete  in  itself,  which  received  no  support  from  the 
walls,  ceiling  or  roof  of  the  building,  and  would  operate  with  the  prop- 
er power  applied  to  it  wherever  it  was  placed." 

The  court  so  found,  with  the  addition  of  the  words,  "but  the  sev- 
eral machines  were  attached  to  the  building  by  nails,  bolts  and  cleats, 
and  the  gearing  and  shafting." 

The  court  found :  "That  all  the  machines  mentioned  in  the  com- 
plaint could  be  taken  apart  without  injury  to  themselves  or  to  the 
building  in  which  they  were  placed,  except  such  injury  as  would  result 
from  the  loosening  of  the  fastenings,  and  could,  without  injury,  be  put 
together  again  and  operated  in  any  place  where  there  was  sufficient 
room  for  them  to  stand,  and  where  the  necessary  power  could  be  ap- 
plied. That  each  of  these  machines,  with  the  exception  of  the  iron 
softener  above  mentioned,  stood  upon  the  floor  of  the  mill,  and  was 
not  in  any  manner  attached  to  or  supported  by  the  walls  or  ceiling,  and 
that  it  was,  in  each  case,  operated  by  a  belt  actuated  by  the  gearing  of 
the  mill  and  passing  over  a  pulley  on  the  machine  and  that  it  was  not 
connected  with  the  gearing  in  any  other  way." 

"That  none  of  said  machines,  with  the  exception  as  aforesaid  of  the 
said  two  iron  softeners,  were  ever  in  any  manner  attached  or  fastened 
to  the  building  except  as  hereinafter  stated,  to  wit :  Some  of  the  ma- 
chines were,  before  the  sale  by  plaintiff  to  Catlin,  fastened  to  the  floor 
at  the  end  where  the  belt  went  on,  by  angle  bolts  made  for  the  purpose, 
which  held  the  feet  of  the  machines  to  the  floor.  These  bolts  went 
down  through  the  floor  and  were  held  by  nuts  screwed  on  below  the 
floor.  Other  machines  were  held  by  nails  of  a  similar  construction — 
that  is,  the  upper  part  bent  over  the  foot  of  the  machine,  while  the  lower 
part  was  driven  into  the  floor.  Others  were  held  by  common  nails, 
and  one  or  two  by  cleats  of  wood  nailed  down  on  each  side  of  the  ma- 
chine ;  they  were  also  attached  to  the  gearing." 

The  court  was  requested  to  find :  "That  whenever  these  bolts,  nails, 
or  cleats  were  used  they  were  placed  only  at  the  end  of  the  machine 
where  the  pulley  was  located,  and  they  were  placed  there  for  the  pur- 
pose of  steadying  the  machine,  and  preventing  it  from  being  moved 
or  lifted  by  the  action  of  the  belt."  The  court  so  found — but  added 
thereto  the  words,  "but  I  do  not  find  that  that  was  the  only  purpose." 

The  court  also  found,  that  there  were  tools  and  machinery  in  the  mill 
or  factory,  other  than  those  enumerated  in  tlie  complaint.  Further 
facts  appear  in  tlie  opinion. 


2G8  FIXTURES  (Ch.  5 

Rapallo,  J.'  *  *  *  On  these  findings,  assuming  them  to  be 
sustained  by  evidence,  I  think  it  clear  on  all  the  authorities  cited,  that 
the  conclusion  that,  as  between  the  present  parties,  the  machines  were 
fixtures  and  part  of  the  freehold  was  correct.  The  rule  declared  by- 
statute  (2  R.  S.  p.  83,  §§  6  and  7),  as  between  the  personal  representa- 
tives and  the  heirs  of  a  deceased  party,  is  not  controlling  in  cases  be- 
tween vendor  and  a  vendee.  Potter  v.  Cromwell,  40  N.  Y.  287,  100 
Am.  Dec.  485 ;  Voorhees  v.  McGinnis,  48  N.  Y.  278 ;  House  v.  House, 
10  Paige,  158.  That  enactment  makes  the  mode  of  annexation  the 
test  whether  the  property  retains  its  character  of  personalty,  and 
gives  to  the  executor  or  administrator  things  annexed  to  the  freehold, 
or  to  any  building,  for  the  purpose  of  trade  or  manufacture,  and  not 
fixed  into  the  wall  of  a  house,  so  as  to  be  essential  to  its  support.  But, 
as  between  vendor  and  vendee,  the  mode  of  annexation  is  not  the  con- 
trolling test.  The  purpose  of  the  annexation,  and  the  intent  with  which 
it  was  made,  is  in  such  cases  the  most  important  consideration.  The 
permanency  of  the  attachment  does  not  depend  so  much  upon  the  de- 
gree of  physical  force  with  which  the  thing  is  attached  as  upon  the 
motive  and  intention  of  the  party  in  attaching  it.  If  the  article  is  at- 
tached for  temporary  use  with  the  intention  of  removing  it,  a  mortga- 
gee cannot  interfere  with  its  removal  by  the  mortgagor.  If  it  is  placed 
there  for  the  permanent  improvement  of  the  freehold  he  may.  Crane 
v.  Brigham,  11  N.  J.  Eq.  (3  Stockton)  29;  Potter  v.  Cromwell,  40  N.  Y. 
296,  297,  100  Am.  Dec.  485.  The  mode  of  annexation  may,  it  is  true, 
in  the  absence  of  other  proof  of  intent,  be  controlling.  It  may  be  in 
itself  so  inseparable  and  permanent  as  to  render  the  article  necessarily 
a  part  of  the  realty,  and  in  case  of  less  thorough  annexation  the  mode 
of  attachment  may  afford  convincing  evidence  that  the  intention  was 
that  the  attachment  should  be  permanent;  as,  for  instance,  where  the 
building  is  constructed  expressly  to  receive  the  machine  or  other  arti- 
cles, and  it  could  not  be  removed  without  material  injury  to  the  build- 
ing, or  where  the  article  would  be  of  no  value  except  for  use  in  that 
particular  building,  or  could  not  be  removed  therefrom  without  being 
destroyed  or  greatly  damaged.  These  are  tests  which  have  been  fre- 
quently applied  in  determining  whether  the  annexation  was  intended  to 
be  temporary  or  permanent,  but  they  are  not  the  only  ones,  nor  is  it  in- 
dispensable that  any  of  these  conditions  should  exist.  In  the  case  of 
Potter  V.  Cromwell,  40  N.  Y.  287,  100  Am.  Dec.  485,  before  referred 
to,  this  court,  after  a  full  examination  of  the  numerous  authorities, 
gave  its  approval  to  the  criterion  of  a  fixture  as  stated  in  Teaff  v. 
Hewitt,  1  Ohio  St.  511,  59  Am.  Dec.  634,  viz.:  The  union  of  three 
requisites.  First.  Actual  annexation  to  the  realty  or  something  appur- 
tenant thereto.     Second.  Application  to  the  use  or  purpose  to  which 

s  The  statement  of  facts  Is  abridged,  part  of  the  opinion  of  Rapallo,  J.,  the 
opinion  of  Folger,  J.,  and  the  dissenting  opinion  of  Allen,  J.,  are  omitted. 


Sec.  1)  WHEN    CHATTELS   BECOME  FIXTURES  20)9 

this  part  of  the  realty  with  which  it  is  connected  is  appropriated. 
Third.  The  intention  of  the  party  making  the  annexation  to  make  a 
permanent  accession  to  the  freehold.  By  the  application  of  that  criteri- 
on this  court,  with  only  one  dissenting  voice,  decided  that  a  portable 
grist-mill  for  grinding  flour,  placed  in  a  building  which  had  been  used 
as  a  tannery,  and  was  provided  with  steam  power  previously  placed  in 
the  building  to  grind  bark  for  the  tannery,  becaine  part  of  the  freehold, 
as  between  a  judgment  creditor  and  a  purchaser  of  the  realty.  It  was 
found  by  the  referee  that  the  grist-mill  was  placed  there  by  the  owner 
of  the  realty  for  the  purpose  of  being  used  as  a  permanent  struc- 
ture for  a  custom  grist-mill  for  the  neighborhood,  and  on  that  ground 
it  was  held  by  this  court  to  have  become  part  of  the  realty,  notwith- 
standing the  fact  that  it  was  not  attached  to  the  walls  of  the  building, 
but  annexed  as  in  the  present  case,  only  to  the  floor.  It  had  been  built 
elsewhere  and  was  constructed  in  such  a  manner  as  to  be  readily  taken 
apart  without  injury  to  itself  or  to  the  building,  and  moved  from  place 
to  place.  There  was  a  very  slight  dift'erence  in  the  mode  of  annexation 
from  that  in  the  present  case,  to  wit:  That  to  support  the  floor,  up- 
right posts  were  placed  under  it  resting  on  the  cellar  floor,  while  in  the 
present  case  the  building  was  constructed  expressly  for  the  purpose 
of  receiving  machinery  of  the  description  which  was  placed  there,  and 
of  sufficient  strength  to  render  additional  support  unnecessary,  al- 
though, in  the  present  case,  some  of  the  machines  weighed  three  or 
four  times  as  much  as  the  portable  grist-mill.     *     *     * 

The  finding  of  the  court  that,  in  the  present  case,  the  original  inten- 
tion of  the  annexation  was  to  make  the  machinery  permanently  a  part 
of  the  building  is,  not,  I  think,  unsupported  by  evidence.  The  building 
was  proved  to  have  been  erected  especially  for  the  purpose  of  a  twine 
factory,  and  with  reference  to  holding  this  description  of  machinery. 
The  machines  were  of  great  weight,  many  of  them  weighing  from  one 
to  four  tons.  They  were  all  permanently  fastened  to  the  floor  of  the 
building,  and  it  is  conceded  that  they  were  adapted  to  the  purposes  for 
which  the  building  was  erected.  The  plaintiff  testified  that  tliey  were 
placed  there  for  permanent  use.  The  fair  interpretation  of  this  evi- 
dence is,  that  they  were  placed  there  for  permanent  use  in  that  build- 
ing; they  constituted  part  of  the  twine  factory,  and  about  two-fifths  in 
value  of  the  entire  establishment;  and  it  appeared  in  evidence  that  al- 
though they  were  capable  of  removal  they  would  be  of  less  value  if 
taken  out  and  sold  than  if  they  remained  where  they  were,  as  part  of 
the  factory.  From  this  evidence  the  court  was,  I  think,  justified  in 
finding  that  they  were  intended  as  a  permanent  part  of  the  structure, 
quite  as  much  so. as  the  portable  grist-mill  in  the  case  of  Potter  v. 
Cromwell,  40  N.  Y.  287,  100  Am.  Dec.  485.  The  dealings  between  the 
plaintiff  and  his  vendee,  also,  showed  that  they  were  regarded  as  fix- 
tures which  passed  with  the  land ;  and  although,  if  the  property  had 


270  FIXTURES  (Ch.  5 

in  its  own  nature  a  determinate  legal  character,  either  as  realty  or  per- 
sonalty, the  manner  in  which  the  parties  treated  it  would  not  change 
that  character ;  yet  when,  as  in  this  case,  the  character  of  the  property 
is  not  so  fixed,  but  depends  upon  the  intention  with  which  it  was  an- 
nexed, the  conduct  of  the  party  who  annexed  it  has  an  important  bear- 
ing, as  throwing  light  upon  that  intention.  He  evidently  understood 
that  it  was  part  of  the  realty,  which  he  could  not  have  done  if  he  had 
placed  it  on  the  premises  for  temporary  use  merely  and  with  the  inten- 
tion that  it  should  remain  personalty.     *     *     * 

After  it  has  been  so  repeatedly  declared  by  the  courts  that  the  char- 
acter of  articles  of  tiie  description  now  in  controversy  attached  to  a 
building,  whether  they  are  to  be  regarded  as  realty  or  personalty,  is  to 
be  determined  by  the  intent  of  the  party  attaching  them,  it  would  be 
peculiarly  unjust  to  depart  from  that  doctrine  in  a  case  like  the  pres- 
ent, where  the  owner  of  the  land  and  buildings,  who  himself  made  the 
annexation,  and  necessarily  knows  the  intent  with  which  it  was  made, 
afterwards  sells  the  whole  establishment  and  takes  for  the  purchase- 
money  a  mortgage  manifestly  intended  to  cover  all  the  property  sold, 
but  which  would  be  a  totally  inadequate  security  if  the  property  which 
he  had  annexed  were  not  treated  as  a  part  of  tlie  realty.  There  can 
be  no  equity  in  such  a  case  in  favor  of  a  mere  judgment  creditor  of 
the  vendee,  as  against  the  mortgagee. 

On  the  whole  case  I  think  the  findings  of  fact  are  sustained  by  evi- 
dence, and  that  the  decision  of  the  court  below  should  be  afiirmed,  with 
costs. 

For  affirmance:  Church,  C.  J.,  Rapali.o,  Folger  and  Miller, 
JJ.    For  reversal:   Allen,  Andrews  and  Earl,  JJ. 

Judgment  affirmed.'' 

i  See  Holland  v.  Hodgson,  L.  R.  7  C.  P.  328  (1872) ;  Ottumwa  Woolen 
Mill  Co.  V.  Hawley.  44  Iowa,  57,  24  Am.  Rep.  719  (1870) ;  Hinkley  &  E?ery 
Iron  Co.  V.  Black,  70  Me.  473,  35  Am.  Rep.  346  (1880);  Hopewell  Mills  v. 
Taunton  Savings  Bank,  150  Mass.  519,  23  N.  E.  327,  6  L.  R.  A.  249,  15  Am. 
St.  Rep.  235  (1890) ;  Feder  v.  Van  Winkle,  53  N.  J.  Eq.  370,  33  Atl,  309,  51 
Am.  St.  Rep.  628  (1895). 

A.  owned  two  lots,  an  opera  house  on  one,  a  factory  on  the  other.  For  the 
purpose  of  lighting  the  opera  house  A.  installed  in  the  factory  a  3,000-pound 
dynamo  and  a  35  horse  power  engine,  the  latter  bolted  to  a  stone  foundation 
6  feet  deep  and  square.  The  engine  was  supplied  with  steam  from  the  facto- 
ry boiler,  and  drove  the  dynamo.  In  a  contest  between  the  real  mortgagee  of 
the  factory  lot  and  a  creditor  attaching  the  engine  and  dynamo  as  personalty, 
a  verdict  for  the  creditor  will  be  sustained.  Vail  v.  Weaver,  132  Pa.  .363,  19 
Atl.  138,  19  Am.  St.  Rep.  598  (1890).  See,  also,  Randolph  v.  Gwynne,  7  N.  J. 
Eq.  88,  51  Am.  Dec.  265  (1848). 


Sec.  1)  WHEN    CHATTELS  BECOME  FIXTURES  271 

LANGDON  V.  BUCHANAN. 
(Supreme  Court  of  New  Hampshire,  1883.    62  N.  H.  657.) 

Trespass,  qu.  cl.,  and  a  second  count  in  trespass  de  bonis.  Facts 
found  by  a  referee.  August  8,  1879,  the  plaintiff  conveyed  to  George 
C.  Cox  a  tract  of  land,  with  the  building  thereon,  used  as  a  grist  mill. 
In  it  were  a  portable  grist-mill,  steam  engine,  and  boiler.  Besides 
the  main  shafting,  there  was  a  counter-shaft,  suspended  and  held  in 
place  by  hangers,  and  on  the  counter-shaft  were  seven  iron  pulleys, 
over  which  passed  belts  connecting  with  the  machinery,  of  the  value 
of  $75.  There  was  a  rubber  belt  seventy-five  feet  in  length,  used  for 
driving  the  machinery,  twenty-five  feet  of  which  was  subsequently 
disposed  of  as  hereinafter  stated.  The  value  of  the  remaining  fifty 
feet  was  $20.  There  was  also  a  set  of  Fairbanks  scales,  used  in  the 
business.  On  the  same  day  Cox  reconveyed  the  same  property  to  the 
plaintiff,  in  mortgage,  to  secure  the  sum  of  $1,600 — part  of  the  pur- 
chase-money. The  mortgage  is  still  outstanding  and  unpaid.  Cox  im- 
mediately fitted  up  the  building  for  the  manufacture  of  window  frames, 
sash,  blinds,  etc.,  and  brought  from  Franklin  and  placed  in  the  mill 
machinery  valued  as  follows :  1  jointing-saw,  $30 ;  1  swing-saw,  $40 
1  buzz-planer,  $140 ;  1  band  saw,  $75 ;  1  saw  bench  with  saws,  $40 
1  turning  lathe,  $20;  5  counter  shafts,  with  hangers  and  pulleys,  $50 
belting  for  driving  machinery,  $100 — total,  $495.  *  *  *  He  ex- 
changed the  portable  grist-mill,  scales,  and  twenty-five  feet  of  rubber 
belting,  with  the  plaintift"'s  consent  for  a  Lee's  patent  moulding  ma- 
chine of  the  value  of  $150,  and  placed  it  in  the  mill. 

All  the  above  machines  were  fastened  to  the  floors  of  the  building 
in  a  manner  to  render  them  firm  and  steady  for  use — the  saw  bench, 
by  iron  rods,  passing  through  the  floor,  with  nuts  on  their  lower  ends ; 
the  others,  either  by  common  wood  screws,  passing  through  the  base 
posts  of  the  machine  into  the  floor,  and  driven  in  by  a  screw  driver, 
or  by  what  are  called  "lag  screws"  having  square  heads  for  the  pur- 
pose, and  turned  with  a  wrench  instead  of  a  screw  driver;  in  the  lat- 
ter cases,  instead  of  the  screws  passing  through  holes  in  the  base  of 
the  machines,  there  were  slots  into  which  they  were  received,  so  that, 
by  removing  two  of  the  screws  and  loosening  the  other  two,  the  ma- 
chine could,  by  sliding  it  to  one  side,  be  removed.  The  hangers,  by 
means  of  which  the  shafting  throughout  the  building  was  suspended 
and  held  in  place,  were  fastened  by  means  of  bolts  passing  through 
the  timbers  of  the  building,  with  nuts  to  make  them  secure.  This  ma- 
chinery was  all  operated  by  means  of  belts  passing  from  pulleys  at- 
tached to  the  shafting.  All  the  above  machines  could  be  removed,  by 
withdrawing  the  screws  and  rods,  without  injury  to  the  building,  and 
when  removed  would  .be  equally  capable  of  use  in  the  same  business 


FIXTURES 


(Ch.  5 


in  any  other  building  adapted  thereto.  The  shafting  could  also  be  re- 
moved without  injury  to  the  building,  by  withdrawing  the  bolts  hold- 
ing tlie  hangers. 

[The  defendant  claimed  under  a  chattel  mortgage  on  the  machinery, 
belting  and  shafting  executed  March  15,  1882.] 

A  referee  found  for  the  plaintifi'. 

Smith,  J.'  The  portable  grist-mill,  steam  engine,  boiler,  shafting, 
pulleys,  belts,  and  scales  passed  with  the  mill  to  Cox  as  fixtures.  The 
understanding  of  the  parties  was  that  they  were  fixtures,  their  under- 
standing being  shown  by  the  fact  that  they  passed  at  once  into  the  pos- 
session of  Cox  without  question,  and  that  subsequently  a  portion  of 
them  were  exchanged  by  him  for  a  moulding  machine.  The  same 
fixtures  were  embraced  in  the  mortgage  from  Cox  to  the  plaintiff,  al- 
though not  mentioned  as  such  in  it.  The  parties  manifestly  intended 
the  mortgage  to  cover  tlie  same  property  that  passed  by  the  deed. 
McRea  v.  Bank,  66  N.  Y.  489;  1  Jones  Mort.,  s.  435.  The  effect  of 
the  exchange  was,  to  make  the  moulding-machine  a  fixture  in  place  of 
the  property  for  which  it  was  exchanged.  The  intention  of  the  par- 
ties is  shown  by  the  fact  that  the  machine  was  annexed  to,  and  used 
with,  the  building  upon  the  mortgaged  premises;  and  it  does  not  ap- 
pear that  the  plaintiff  released  or  was  asked  to  release  his  mortgage 
lien,  or  that  Cox  undertook  to  make  the  exchange  without  his  con- 
sent.    *     *     * 

The  machinery  brought  from  Franklin  became  fixtures  as  between 
the  mortgagee  and  mortgagor.  *  *  *  They  were  such  fixtures  as 
are  regarded  as  permanent  in  their  nature,  and  necessary  for  doing 
the  work  of  the  mill.  The  buzz-planer,  and  saw  bench  were  annexed 
to  the  building  in  the  usual  manner,  and  the  counter-shafting  by  means 
of  the  hangers,  the  belting  connected  the  saws  and  lathe  with  the  pul- 
leys on  the  counter-shafting,  and  operated  them  and  the  other  machin- 
ery. The  purposes  of  the  annexation  and  the  intent  with  which  it  is 
made  are  the  important  considerations.  The  owner  turned  his  grist- 
mill into  a  sash,  door,  and  blind  factory.  Such  a  shop  without  the 
machinery  would  be  as  useless  as  a  grist-mill  without  mill-stones,  or 
a  saw-mill  without  saws  (Burnside  v.  Twitchell,  43  N.  H.  390),  or  a 
paper  mill  without  machinery  for  the  manufacture  of  paper  (Lathrop 
V.  Blake,  23  N.  H.  46).  In  New  York,  machinery  attached  to  the 
realty  is  presumed  to  have  been  attached  with  a  view  to  the  permanent 
improvement  of  the  freehold,  in  the  absence  of  proof  that  the  annexa- 
tion was  not  intended  to  be  permanent.  Potter  v.  Cromwell,  40  N. 
Y.  287,  100  Am.  Dec.  485 ;  McRea  v.  Bank,  66  N.  Y.  489.  Whether 
machines  become  a  part  of  the  realty  does  not  depend  so  much  upon 
the  character  of  the  fastening — whether  it  be  slight  or  otherwise — as 
it  does  upon  the  nature  of  the  article  and  its  use,  as  connected  with 

6  Tart  of  tlie  opiuiou  is  omitted. 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTDEES  273 

the  use  of  the  freehold.  Despatch  Line  v.  Bellamy  Mfg.  Co.,  12  N. 
H.  232,  233,  37  Am.  Dec.  203.  A  mill-stone,  resting  upon  the  iron 
work  fixed  to  the  top  of  the  perpendicular  shaft  which  turns  it,  and 
is  kept  there  by  the  force  of  gravity,  may  be  a  fixture.  Burnside  v. 
Twitchell,  43  N.  H.  390,  394.  A  steam  boiler  or  looms,  used  in  a  mill 
as  part  of  it,  and  necessary  for  doing  its  work  and  carrying  on  its  busi- 
ness, mav  be  a  part  of  it,  though  held  in  position  only  by  their  own 
weight.    'Cavis  v.  Beckford,  62  N.  H.  229,  13  Am.  St.  Rep.  554. 

The  facts  in  this  case  show  an  actual  annexation  of  the  machiner}% 
and  its  applicability  to  the  use  to  which  the  real  estate  was  appropri- 
ated. The  fact  that  Cox  subsequently  mortgaged  the  machinery  is  not 
material.  It  was  after  it  had  been  annexed  to  the  building  and  used 
in  its  business.     *     *     * 

Case  discharged." 


McCONNELL  v.  BLOOD. 

(Supreme  Judicial    Court    of   Massachusetts,    1877.      123    Mass.    47,    25    Aid. 

Rep.  12.) 

Tort  for  the  conversion  of  machinery.  The  case  was  submitted  to 
the  Superior  Court,  and,  after  judgment  for  the  defendant,  to  this 
court,  on  appeal,  on  an  agreed  statement  of  facts  in  substance  as  fol- 
lows: 

The  plaintifl:'  claims  title  as  assignee  of  one  Cunningham,  under  a 
composition  with  his  creditors ;  the  defendant,  as  mortgagee  of  certain 
real  estate  used  by  Cunningham  as  a  shoe-shop,  in  which  the  machinery 
was  situated  and  used  by  Cunningham.  The  only  question  at  issue 
is  whether  the  machines  enumerated  below  are  personal  property  and 
passed  to  the  plaintiff  as  against  the  defendant,  who  has  foreclosed 
his  mortgage ;  or  fixtures  which  the  defendant,  as  mortgagee,  can 
hold.  The  machines,  and  the  manner  of  their  attachment  to  the  build- 
ing, are  as  follows : 

"1.  A  Baxter  upright  steam-engine  and  boiler,  ten  horse  power, 
resting  on  a  layer  of  brick  on  the  lower  floor ;  the  floor  rests  upon 
blocks  which  rest  upon  the  brick  walls  of  a  tank  built  into  the  soil 
for  the  purpose  of  supplying  the  engine  with  water,  the  engine  above 
the  boiler  being  bolted  through  the  timbers  of  the  floor  above  by 
two  iron  bolts.  The  total  height  of  the  boiler  and  engine  is  eight 
feet  and  two  inches,  the  height  of  the  boiler  is  five  feet,  the  circumfer- 
ence of  the  boiler  twelve  feet  eight  and  one-half  inches,  the  diameter 
of  the  balance  wheel  thirty  inches,  and  the  diameter  of  the  driving 

6  See  Fifield  v.  Farmers'  Nat.  Bank,  148  111.  !(«.  So  N.  E.  S02.  39  Am.  St. 
Rep.  166  (1S93) :    Parsons  v.  Copeland,  38  Me.  5;i7  (1854). 

Bui.l'ERS.I'KOP. — IS 


FIXTURES 


(Ch.  5 


wheel  twenty  inches.  Steam  pipes  for  heating  the  building  are  con- 
nected with  the  boiler,  and  the  exhaust  pipe  and  blow  pipe  pass  oflf 
through  the  floor  below  the  boiler.  The  engine  and  boiler  could  be  de- 
tached from  the  building,  for  use  elsewhere,  without  damage  to  the 
building,  but  in  order  to  remove  them  from  the  building  it  would  be 
necessary  to  enlarge  two  doorways,  one  of  them  being  the  outer  door. 

"2.  A  steam  gauge,  connected  with  the  engine  by  an  iron  pipe, 
and  fastened  to  a  piece  of  plank  nailed  to  the  flooring  timbers  above. 

"3.  A  steam  pump,  bolted  to  a  plank  bench,  which  bench  is  nailed 
to  the  studding  of  the  building  and  to  the  floor,  and  is  connected  by 
pipes  with  a  tank,  upon  the  floor  above,  that  furnishes  water  for  the 
boiler,  and  with  another  tank  in  the  attic,  that  furnishes  water  for 
general  uses. 

"4.  One  sole-leather  stripping  machine.  5.  One  sole  leather  splitting 
machine.  6.  One  sole  cutting  machine.  These  three  machines  are 
heavy  iron  machines,  not  fastened  to  the  floor  by  bolts  or  screws,  but 
belted  downward  to  the  shafting  under  the  floor ;  being  so  belted  down- 
ward, it  is  unnecessary  to  bolt  them  to  the  floor  for  use. 

"7.  One  sole  leather  rolling  machine,  attached  in  the  same  manner 
as  the  last  three  machines,  except  that  in  addition  a  small  wooden  table 
is  attached  to  the  machine,  and  is  nailed  to  a  post  of  the  building  and 
to  the  floor,  so  that  to  take  down  the  machine  it  would  be  necessary  to 
remove  the  table. 

"8.  One  small  iron  welt  splitting  machine,  bolted  to  a  bench  which 
is  nailed  to  tlie  floor  and  to  the  walls  of  the  building,  and  is  bolted 
downward  to  shafting  below  the  floor. 

"9.  A  buffing  machine,  consisting  of  a  wooden  frame  with  buffing- 
wheels  and  iron  pulleys,  the  pulleys  being  belted  through  the  floor 
to  shafting  below,  and  the  frame  being  nailed  to  the  floor  and  the  wall 
of  the  building.     *     *     * 

"19.  One  water-tank,  in  the  attic,  a  section  of  an  iron  boiler  resting 
by  its  own  weight,  fed  by  a  pipe  from  the  steam  pump,  and  distribut- 
ing water  by  other  pipes  through  the  building  for  general  use. 

"20.  All  the  shafting  in  the  building.  This  runs  in  iron  hangers  bolt- 
ed to  the  floor  timbers." 

For  such  of  the  machinery  held  by  the  court  to  be  personalty,  the 
plaintiff  was  to  recover,  the  damages  to  be  assessed  by  an  assessor.'' 

SouLE,  J.  The  rights  of  these  parties  are  determined  by  the  rules 
which  apply  between  mortgagor  and  mortgagee.  Many  things  which 
as  between  landlord  and  tenant,  would  be  removable  as  chattels,  are 
regarded  as  part  of  the  realty,  in  favor  of  the  mortgagee.  In  as- 
certaining what  articles  have  become  part  of  the  realty,  regard  must 
be  had  to  the  manner  in  which,  the  purpose  for  which,  and  the  ef- 


1  The  statement  of  facts  is  abridged. 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTURES  275 

feet  with  which,  they  are  annexed.  McLaughlin  v.  Nash,  14  Allen, 
136.  92  Am.  Dec.  741;  Pierce  v.  George,  108  Mass.  78,  11  Am.  Rep. 
310.  Whatever  is  placed  in  a  building  by  the  mortgagor  to  carry  out 
the  obvious  purpose  for  which  it  was  erected,  or  to  permanently  in- 
crease its  value  for  occupation,  becomes  part  of  the  realty,  though 
not  so  fastened  that  it  cannot  be  removed  without  serious  injury  either 
to  itself  or  to  the  building.  On  the  other  hand,  articles  which  are 
put  in  merely  as  furniture  are  removable,  though  more  or  less  substan- 
tially fastened  to  the  building.  So,  too,  machines,  not  essential  to 
the  enjoyment  and  use  of  a  building  occupied  as  a  manufactory  nor 
especially  adapted  to  be  used  in  it,  are  removable,  though  fastened 
to  the  building,  when  it  is  clear  that  the  purpose  of  fastening  them 
is  to  steady  them  for  use,  and  not  to  make  them  a  permanent  part  of 
or  adjunct  to  the  building.  Winslow  v.  Merchants  Ins.  Co.,  4  Mete. 
306,  38  Am.  Dec.  368;  Hellawell  v.  Eastwood,  6  Exch.  295;  The 
Queen  v.  Lee,  L.  R.  1  Q.  B.  241 ;  Pierce  v.  George,  above  cited. 

The  engine  and  boiler,  which  were  put  in  to  supply  the  premises 
with  power;  the  steam  gauge,  which  is  essential  to  the  safe  use  of 
the  same;  the  water  tank,  for  supplying  the  building  with  water  for 
general  use ;  the  steam  pump  connected  therewith,  and  the  shafting,  are 
evidently  designed  as  permanent  additions  to  the  realty,  and  could 
not  be  removed  without  seriously  injuring  the  value  of  the  building 
for  use. 

The  other  articles  named  in  the  agreed  facts  are  in  no  way  essential 
to  the  enjoyment  of  the  estate;  they  are  incidental  merely  to  the  par- 
ticular business  carried  on  at  the  time ;  .and,  though  some  of  them  are 
affixed  to  the  building  by  nails  or  bolts,  it  is  clear  that  the  object  of 
affixing  them  is  only  to  secure  them  so  that  they  may  be  advantageous- 
ly used,  and  not  to  make  them  permanent  parts  of  the  building.  They 
are  therefore  chattels;  and  for  their  value,  to  be  ascertained  by  an 
assessor,  there  must  be 

Judgment  for  the  plaintiff.' 

8  See  Wade  v.  Johnson,  25  Ga.  331  (1S.5S) ;  TeaCf  v.  Hewitt,  1  Ohio  St. 
511,  59  Am.  Dec.  634  (1S53) ;  Sweetzer  v.  Jones,  35  Vt.  317,  82  Am.  Dec.  030 
(1SG2) ;  Neufelder  v.  Third  St.  &  S.  Ry.,  23  Wash.  470,  03  Pac.  197,  53  L.  R.  A. 
600,  S3  Am.  St.  Rep.  831  (1900). 


276  FixTuuES  (Ch.  5 

Ex  parte  ASTBURY. 
(Court  of  Appeal  in  Chancery,  1S69.     L.  R.  4  Ch.  App.  630.) 

This  case  came  before  the  Court  on  appeal  from  an  order  of  Mr. 
Registrar  Tudor,  acting  for  the  Commissioner  of  the  Birmingham 
Court  of  Bankruptcy,  made  on  a  special  case  submitted  for  his  de- 
cision. 

It  appeared  from  the  special  case  that  on  the  28th  of  June,  1867,  the 
firm  of  Messrs.  Job  Richards  &  Co.,  iron  manufacturers  at  Smeth- 
wick,  which  comprised  the  present  bankrupts,  Job  Richards  and  Rich- 
ard Hill,  and  also  T.  and  L.  Jenkins,  being  at  that  time  indebted  to 
Lloyd's  Banking  Company,  Limited,  deposited  with  them  the  lease 
of  their  rolling  mills  at  Smethwick,  accompanied  by  a  memorandum 
in  the  following  terms  : 

"Memorandum.  We,  the  undersigned  Job  Richards,  L.  Jenkins, 
Richard  Hill,  and  Thomas  Jenkins,  trading  together  as  iron-masters 
at  Smethwick,  in  the  county  of  Stafford,  under  the  style  or  firm  of 
Job  Richards  &  Co.,  have  this  day  deposited  with  Lloyd's  Banking 
Company,  Limited,  the  deed  mentioned  in  the  schedule  hereunder 
written,  to  be  retained  by  the  company  by  way  of  a  continuing  se- 
curity to  them  for  payment  on  demand  of  all  moneys  and  liabilities 
already  paid  or  incurred,  or  which  the  company  may  at  any  time  ad- 
vance, pay,  or  incur  to  or  for  the  said  firm  of  Job  Richards  &  Co., 
whether  on  current  account  or  by  the  discount  of  or  otherwise  in  re- 
spect of  bills  of  exchange,  promissory  notes,  or  other  negotiable  se- 
curities drawn,  accepted,  or  indorsed  by  the  said  firm,  together  with 
interest,  commission,  banking  charges,  law  and  other  costs,  charges, 
and  expenses ;  and  for  a  more  effectual  security  we  undertake  at  our 
own  expense,  when  required  by  the  company,  that  we  and  all  other 
necessary  parties  will  execute  to  the  said  company,  or  as  they  shall 
direct,  a  mortgage  of  all  our  estate  and  interest  in  the  said  deed,  which 
mortgage  shall  contain  a  power  of  sale  and  all  usual  clauses." 

The  account  was  continued  as  an  open  account  with  the  four  partners 
up  to  the  month  of  August,  1867,  when  the  partnership  between  the 
bankrupts  and  Messrs.  Jenkins  was  dissolved,  and  the  bankrupts  took 
the  assets  and  debts  of  the  old  firm,  including  a  balance  of  upwards  of 
£10,000.  due  to  Lloyd's  Banking  Company. 

On  the  11th  of  January,  1868,  the  bankrupts  executed  to  the  bank- 
ing company  a  legal  mortgage  of  the  mills;  and  on  the  18th  of  Jan- 
uary the  banking  company  took  possession  under  the  mortgage.  On 
the  30th  of  January  a  petition  of  bankruptcy  was  filed  against  them, 
and  they  were  declared  bankrupts,  and  Messrs.  Astbury,  Bloomer,  and 
Dickenson  were  appointed  assignees. 

The  mortgage  deed  had  a  schedule  annexed  to  it,  containing  a  list 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTURES  277 

of  certain  chattels  used  in  the  rolling  mills,  which  were  the  sub- 
ject of  the  present  dispute  between  the  assignees  and  the  mortgagees. 
These  chattels  consisted  of  a  considerable  number  of  iron  rollers  de- 
scribed as  finishing  rolls,  colting  rolls,  guide  rolls,  hard  rolls,  and 
bolting  down  rolls ;  and  also  four  patent  weighing  machines,  and  four 
straightening  plates. 

It  was  admitted  in  the  special  case  that  the  rolls  and  other  chattels 
comprised  in  the  last-mentioned  schedule  were  necessary  to  the  car- 
rying on  of  the  bankrupts'  business.  If  they  had  been  removed,  others 
of  a  similar  description  must  have  been  substituted. 

The  assignees  contended  that  the  mortgage  security  was  void  against 
them  so  far  as  related  to  the  duplicate  rolls  and  other  unfixed  ma- 
chinery and  chattels. 

It  was  admitted  in  the  argument  that  the  mortgage  deed  of  the  11th 
of  January,  1868,  could  not  be  supported  against  the  assignees,  by 
reason  of  its  having  been  made  on  the  eve  of  bankruptcy;  but  the 
mortgagees  claimed  the  chattels  as  fixtures  attached  to  the  iron  mills, 
under  the  equitable  mortgage  and  deposit  of  the  2Sth  of  June,  1867. 
The  assignees  admitted  that  one  set  of  rolls  passed  with  the  machine 
to  the  equitable  mortgagees.  Evidence  was  adduced  before  the  Regis- 
trar as  to  the  nature  of  the  chattels,  in  which  the  following  facts  were 
proved : 

The  rolls  were  loose  iron  rollers,  which  were  fitted  into  the  rolling 
machine.  The  machines,  when  made,  were  fitted  with  one  set  of  roll- 
ers, and  others  were  ordered  and  supplied  according  to  the  work  re- 
quired, different  sized  rolls  being  used  for  different  descriptions  of 
iron.  When  the  rolls  first  came  from  the  manufacturer  they  had  to 
be  fitted  to  their  bearings  in  the  machines  by  filing  their  ends,  and  when 
so  fitted  they  were  grooved  according  to  the  size  of  the  iron  which 
they  were  intended  to  roll.  At  the  date  of  the  equitable  mortgage 
there  were  several  duplicate  rolls  which  had  been  used  or  were  ready 
for  use,  and  others  which  had  been  supplied  by  the  manufacturers,  but 
had  never  been  fitted  to  the  machine. 

There  were  four  weighing  machines,  which  were  placed  in  holes  dug 
in  the  ground  and  faced  with  brickwork.  The  machines  rested  on 
the  brickwork  at  the  bottom  of  the  holes,  the  weighing  plates  being 
on  a  level  with  the  surface  of  the  ground.  It  was  stated  in  the  evi- 
dence that  the  machines  might  be  removed  without  injuring  the  brick- 
work, and  that  similar  machines  were  often  placed  upon  wheels  in- 
stead of  resting  on  the  ground. 

The  straightening  plates  were  broad  plates  of  iron  for  straightening 
the  bars  of  iron  when  taken  out  of  the  furnace.  They  were  laid  on 
brickwork  and  bedded  in  the  earth  of  the  floor,  and  the  rest  of  the 
flooring  was  composed  of  iron  plates,  which  fitted  round  them  so  as 
to  make  an  even  surface. 


278  FIXTURES  (Ch.  5 

The  Registrar  was  of  opinion  that  the  rolls  passed  with  the  mills 
to  the  mortgagees,  as  being  part  of  the  machinery;  from  this  deci- 
sion the  assignees  appealed.  But  he  held  that  the  weighing  machines 
and  straightening  plates  did  not  pass;  and  the  mortgagees  appealed 
from  this  decision. 

Sir  G.  M.  Giffard,  L.  J.  The  questions  in  cases  of  this  descrip- 
tion are,  for  the  most  part,  much  more  questions  of  fact  than  of  law, 
for  to  my  mind  the  law  has  been  settled,  but  the  facts  necessarily  dif- 
fer more  or  less  in  each  particular  case. 

With  respect  to  the  law,  it  is  admitted  that  where  there  is  a  mort- 
gage of  a  manufactory,  and  part  of  the  machinery  used  in  it  is  a  fix- 
ture, that  part  passes.  We  have,  therefore,  to  determine  what,  ac- 
cording to  the  law,  are,  in  a  proper  sense  fixtures.  There  are  two 
dicta  which  will  be  sufficient  to  guide  us  for  the  present  purpose.  In 
Mather  v.  Fraser  it  was  decided  that  the  article  must  be  an  essential 
part  of  the  machine.  I  think  that  was  all  that  it  was  necessary  to  lay 
down  in  that  case.  The  dictum  of  Lord  Cottenham  in  Fisher  v.  Dix- 
on, 12  CI.  &  F.  312,  was  that  all  "belonging  to  the  machine"  would 
pass,  and  I  should  say  in  this  case  the  proper  test  to  lay  down  would 
be  that  the  chattel  must  be  "something  which  belongs  to  the  machine 
as  part  of  it." 

Now,  these  machines  were  rolling  machines,  and  there  appear  to 
be  connected  with  rolling  machines  parts  which,  beyond  all  doubt,  are 
not  fixed,  in  the  strict  sense  of  the  term ;  but  it  is  in  evidence  that  if 
a  machine  is  ordered,  it  is  sent  with  one  set  of  rolls,  and  it  is  quite 
manifest  that  without  rolls  the  machine  could  not  do  any  part  of  the 
work  for  which  it  is  made.  One  set  of  rolls  clearly  passes.  But  we 
have  here  duplicate  rolls,  and  with  reference  to  them — I  am  not  now 
speaking  of  rolls  which  can  be  considered  as,  in  any  sense,  unfinished, 
but  of  duplicate  rolls  which  have  been  actually  fitted  to  the  machine — 
— I  cannot  see  why,  if  one  set  of  rolls  passes,  the  duplicate  rolls  should 
not  pass  also.  It  comes,  in  fact,  to  this,  that  the  machine  with  one  set 
of  rolls  is  a  perfect  machine,  but  the  machine  with  a  duplicate  set  is 
a  more  perfect  machine.  I  think,  therefore,  that  each  set  of  rolls 
necessarily  belongs  to  the  machine  as  part  of  it.  I  do  not  think  that 
this  is  at  all  affected  by  the  dictum  of  Fitzherbert;  but  if  it  was,  my 
answer  would  be,  that  this  subject  has  been  considered  much  more  of 
late  years  than  it  was  in  ojden  times,  and  that  the  matter  decided  was 
with  regard  to  a  question  of  distress.  If  it  were  desired  to  reduce  the 
question  to  an  absurdity,  it  would  be  by  supposing  a  case  of  duplicate 
latch  keys  to  a  door,  and  holding  that  one  only  should  pass,  and  not 
the  other.  The  fact  is,  that  whether  there  is  one  set  of  rolls  or  a 
duplicate  set,  they  are  each  part  and  parcel  of  the  machine,  and  come 
within  the  term  "belonging  to  the  machine  as  part  of  it." 

Then  comes  the  case  as  to  the  different  sizes  of  rolls.     But  if  tlie 


Sec.  1)  WHEN    CHATTELS  BECOME  FIXTURES  279 

duplicates  of  the  same  size  pass,  it  follows  that  the  rolls  of  different 
sizes  pass,  if  they  render  the  machine  still  more  perfect  than  if  the 
rolls  were  all  of  the  same  size. 

Then  we  come  to  another  and  different  class  of  rolls,  and  there  I 
confess  I  differ  from  the  Registrar  who  has  given  his  opinion  in  this 
case.  I  allude  to  those  rolls  which  had  been  made  for  the  purpose  of 
being  used  in  this  machine,  and  had  been  sent  to  the  mill  for  that  pur- 
pose, but  had  never  been  fitted  to  the  machine,  and  which  required 
something  more  to  be  done  to  fit  them  to  the  machine  in  order  that 
they  might  be  used  in  it.  I  think  that  if  a  man  mortgages  a  machine, 
and  afterwards,  the  machine  itself  being  perfect,  and  fitted  with  rolls 
and  everything  else  connected  with  it,  other  rolls  are  sent  for  to  be 
used  with  the  machine,  but  those  rolls  cannot  be  used  unless  and  un- 
til they  are  fitted  to  the  machine,  it  would  be  going  a  long  way  to  say 
that  the  mortgagor  should  be  compelled  to  fit  those  rolls  to  the  ma- 
chine, and  should  be  precluded  from  saying  that  they  do  not  form  a 
part  of  the  machine. 

Therefore  I  am  of  opinion  that,  as  regards  the  duplicate  rolls,  as 
regards  the  rolls  of  different  sizes,  as  regards  all  the  rolls  which  have 
been  actually  fitted  to  the  machine,  they  belong  to  the  machine  as  part 
of  the  machine— they  are,  in  fact,  essential  parts  of  the  machine.  But 
I  cannot  hold  that  the  rolls  which  have  never  been  fitted  to  the  ma- 
chine, and  have  never  been  used  in  the  machine,  and  which  require 
something  more  to  be  done  to  them  before  they  are  fitted  to  the  ma- 
chine, belong  to  the  machine,  or  that  they  are  essential  parts  of  it. 
Therefore,  in  that  respect,  the  order  will  be  varied. 

The  second  appeal  was  tlien  argued. 

Sir  G.  M.  Giffard,  L.  J.  The  two  points  which  remain  to  be  dis- 
posed of  in  this  question  are,  first,  as  to  the  straightening  plates ;  ana, 
secondly,  as  to  the  weighing  machines.  I  cannot  agree  to  the  sugges- 
tion of  Mr.  Jessel  that  because  the  mortgagor  in  this  case  was  a  lease- 
holder and  not  a  freeholder  the  articles  which  are  fixtures  will  not 
pass  to  the  mortgagee.  Whether  he  is  a  freeholder  or  a  leaseholder, 
the  same  rule  clearly  and  indubitably  would  apply,  and  the  only  ques- 
tion is,  whether  the  straightening  plates  and  the  weighing  machines 
are  fixtures. 

With  regard  to  the  straightening  plates,  two  cases  were  cited,  one 
of  the  Metropolitan  Counties  Society  v.  Brown,  and  another  of  Bates 
V.  Duke  of  Beaufort.  The  latter  case  clearly  has  no  application,  for 
that  was  a  case  in  which,  there  being  chattels  which,  as  between  the 
lessor  and  lessee,  the  lessee  might  remove,  an  execution  creditor  of 
the  lessee  was  held  entitled  to  take  them.  As  regards  the  former  case, 
the  point  was  wholly  different  from  the  point  in  this  case,  because 
there  the  straightening  plates  certainly  were  not  fixed  in  the  mode  in 
which  these  straightening  plates  appear  from  tlie  evidence  to  be  fixed. 


280  FIXTURES  (Ch.  5 

It  is  only  necessary  to  read  some  portions  of  the  evidence  to  shew  that 
these  straightening  plates  are  clearly  fixtures,  and,  in  fact,  just  as 
much  part  of  the  floor  as  any  pavement  would  be,  and,  certainly,  it 
would  be  astonishing  to  me  if  an  ordinary  pavement  were  regarded 
as  a  thing  that  could  be  removed  by  a  mortgagor  as  against  his  mort- 
gagee. [His  Lordship  then  referred  to  the  evidence,  and  continued:] 
Upon  this  evidence  I  must  assume  that  the  plates  round  the  straight- 
ening plates  are  part  of  the  ordinary  floor  of  the  place,  and  that  the 
straightening  plates  are  just  as  much  part  of  the  ordinary  floor  as  the 
plates  around  them.  I  look  upon  these  straightening  plates  as  in  the 
same  positiori  as  a  flagstone  laid  down  and  let  in,  and  certainly  if  any- 
thing in  the  world  is  a  fixture  I  should  conceive  that  a  flagstone  laid 
down  and  let  in  would  be  a  fixture.  In  fact,  the  Registrar  seems  to 
have  fallen  into  this  mistake  by  laying  rather  too  much  stress  on  what 
was  said  in  the  case  of  Mather  v.  Fraser,  2  K.  &  J.  536,  as  to  noth- 
ing being  a  fixture  which  could  stand  by  its  own  weight.  No  doubt 
a  flat  plate  will  rest  by  its  own  weight,  but  if  you  have  it  laid  in,  em- 
bedded, and  overlaid  with  that  which  is  part  of  the  permanent  floor, 
and  the  permanent  floor  cannot  be  removed  without  damage  to  the 
freehold,  as  it  clearly  cannot  be  here,  I  can  have  no  doubt  whatever 
but  that  the  straightening  plates  are  fixtures. 

But,  then,  with  regard  to  the  weighing  machines  I  think  the  case 
is  wholly  different.  The  evidence  is  clear  that  weighing  machines  of 
this  description  are  frequently  put  upon  wheels,  and  are,so  used.  As 
regards  these  weighing  machines,  it  appears  that  where  they  are  placed 
inside  the  building  the  floor  is  prepared  for  them,  and  where  they  are 
placed  outside  the  soil  is  prepared  for  them;  that  is  to  say,  a  square 
receptacle  is  made  and  is  bricked,  and  when  that  square  receptacle  is 
made  and  bricked  the  weighing  machine  is  placed  in  it,  and  may,  of 
course,  be  taken  out  again,  for  it  is  not  fixed  by  nails,  or  by  screws,  or 
in  any  other  way.  One  of  the  witnesses  says:  "I  took  a  piece  of  thin 
iron  about  half  an  inch  thick,  and  trickled  around  the  outside  of  it, 
and  from  that  I  could  see  there  was  some  brickwork  put  up  in  order 
to  secure  the  outside ;  there  was  a  space  all  round  of  from  five-eighths 
to  three-fourths  of  an  inch."  Mr.  Fry  argued  that  the  brickwork  was 
the  same  thing  as  if  there  had  been  a  frame,  and  that  the  brickwork 
is  part  and  parcel  of  the  machine.  To  that  argument  I  cannot  assent. 
Suppose  in  this  case  a  number  of  brick  places  had  been  made,  into 
which  it  had  been  convenient  to  put  weights,  beyond  all  doubt  the 
weights  would  not  have  been  fixtures.  In  the  same  way,  if  there  has 
been  a  foundation  of  granite  for  a  cannon  or  a  large  telescope,  neither 
the  cannon  nor  the  large  telescope  would  be  a  fixture.  The  prepara- 
tion of  the  soil  does  not  make  the  machine  a  fixture,  nor  does  the  fact 
of  its  being  put  into  the  receptacle  so  prepared  for  it  make  it  a  fixture. 

Therefore,  as  regards  the  straightening  plates  the  decision  below 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTURES  2S1 

will  be  reversed,  and  as  regards  the  weighing  machines  it  will  be  af- 
firmed. There  will  be  no  costs  of  the  appeal,  and  the  deposit  will  be 
returned. 


WINSLOW  V.  BROMICH. 

(Supreme   Court   of  Kansas,   1894.     54   Kan.   300,   38  Pac.  275,   45   Am.    St 

Rep.  285.) 

HoRTON,  C.  J.°  This  was  a  controversy  in  the  court  below  over 
sugar  wagons.  They  were  furnished  by  Joseph  Bromich  to  the  Ameri- 
can Sugar  Company,  manufacturing  sugar  at  Minneola,  in  this  state. 
They  were  constructed  of  sheet  and  cast  iron,  being  4  feet  long,  3  feet 
wide,  and  26  inches  deep,  with  three  adjustable  wheels  on  each  wagon. 
They  were  used  in  the  mill  for  the  purpose  of  holding  the  syrup  and 
conveying  it  from  place  to  place  on  the  floor  of  the  mill  until  it  was 
converted  into  sugar.  The  wheels  of  the  sugar  wagons  were  low, 
about  eight  inches  in  diameter,  and  the  wagons,  when  in  use,  were 
pushed  by  hand  from  place  to  place  within  the  mill.  These  wagons 
were  of  the  same  character  as  other  similar  wagons  used  in  other  su- 
gar mills,  and  such  mills  cannot  be  successfully  operated  without  such 
wagons  or  other  vessels  of  like  character. 

[Bromich  claimed  them  by  virtue  of  a  judgment  under  a  mechanics 
lien;  Winslow  claimed  them  under  a  contract  of  purchase  made  after 
the  judgment  in  die  lien  case.] 

The  question  for  our  determination  is  whether  the  sugar  wagons 
were  personal  property,  or  fixtures.  If  personal  property,  then  C.  W. 
Winslow  is  entitled  to  judgment  for  costs ;  but  if  fi.xtures,  the  judginent 
in  favor  of  Joseph  Bromich  and  the  Densmore  Brothers  must  be  af- 
firmed.    *     *     * 

In  Railroad  Co.  v.  Morgan,  42  Kan.  23,  21  Pac.  809,  4  L.  R.  A.  284, 
16  Am.  St.  Rep.  471,  it  was  observed:  "One  of  the  tests  of  whether 
personal  property  retains  its  character  or  becomes  a  fixture  is  the  uses 
to  which  it  is  put.  If  it  is  placed  on  the  realty  to  improve  it  and  make 
it  more  valuable,  it  is  some  evidence  that  it  is  a  fixture ;  but  if  it  is 
placed  there  for  a  use  that  does  not  enhance  the  value  of  the  realty, 
this  is  some  evidence  that  it  is  personal  property.  *  *  *  f\-^Q  ^■^^y^_ 
pie  fact  of  annexation  to  the  realty  is  not  the  sole  and  controlling  test 
of  whether  a  certain  article  is  a  fixture  or  not,  is  very  well  illustrated 
by  the  fact  that  trees  growing  in  a  nursery  and  kept  there  for  sale  are 
personal  property,  while  trees  no  larger,  if  transplanted  to  an  orchard, 
become  real  estate.     On  the  other  hand,  there  are  very  many  things 

"  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


2S2  FIXTURES  (Ch.  5 

although  not  attached  to  the  realty  which  become  real  property  by  their 
use — keys  to  a  house,  blinds  and  shutters  to  the  windows,  fences  and 
fence  rails,  etc." 

The  sugar  wagons,  as  we  understand  the  agreed  facts,  were  placed 
in  the  mill  for  use,  not  to  enhance  the  value.  They  are  movable  and  if 
taken  out  will  not  disturb  the  mill  or  in  any  way  injure  the  building. 
They  do  not  run  upon  wooden  or  iron  rails  attached  to  the  building, 
nor  are  they  connected  in  their  operation  by  bands  or  in  any  other  way 
with  the  permanent  machinery.  They  are  not  like  the  wheels  or 
stones  to  a  mill,  or  the  keys  to  a  house,  or  tlie  blinds  and  shutters  to 
windows.  Being  adapted  to  convey  syrup  from  place  to  place  in  the 
mill,  they  must  be  considered  in  the  same  class  as  buckets,  kettles,  bar- 
rels, and  similar  vessels,  used  for  like  purposes.  As  the  sugar  wagons 
were  not  actually  or  constructively  annexed  to  the  realty,  or  something 
appurtenant  thereto,  but  merely  furnished  for  necessary  use  in  the  mill, 
and  not  intended  to  enhance  the  value  of  the  realty,  we  must  hold  them 
to  be  personal  propert)'  and  not  fixtures.  Walker  v.  Sherman,  20 
Wend.  (N.  Y.)  636;  Haeussler  v.  Glass  Co.,  52  Mo.  452;  Graves  v. 
Pierce,  53  Mo.  423;  Ex  parte  Astbury,  4  Ch.  App.  630;  Ewell,  Fixt. 
(1876)  22,  23;  1  Jones,  Mort.  444-449. 

The  judgment  of  die  district  court  will  be  reversed  and  the  cause  re- 
manded with  direction  to  the  court  below  to  render  judgment  for  C.  W. 
Winslow.'" 

10  Ace.:  Large  tubs,  ice  tools,  and  other  appliances  used  in  a  brewery, 
Wolford  V.  Baxter,  33  Minn.  12,  21  N.  W.  7«,  53  Am.  Rep.  1  (1SS4) ;  movalile 
piping,  blacksmith's  tools,  furniture,  carts  used  in  and  about  a  mine,  Scudder 
V.  Anderson,  54  Mich.  122,  19  N.  W.  775  (18S4) ;  a  boat  used  in  connection 
with  a  summer  cottage,  Dana  v.  Burke,  62  N.  H.  627  (1SS3). 

Contra:  Crates  in  a  canning  factory,  Dudley  v.  Hurst,  67  Md.  44,  8  Atl. 
901,  1  Am.  St.  Rep.  368  (1887). 

Cars  with  flanged  wheels  ininning  on  rails,  used  in  a  brickyard  and  essen- 
tial thereto,  are  subject  to  a  mechanic's  lien.  Curran  v.  Smith,  37  111.  App. 
69  (1890). 

For  the  arguments  that  rolling  stock  of  a  railroad  is  realty,  see  Williamson 
V.  New  Jersev  Southern  Railway,  28  N.  J.  Eq.  277  (1877) ;  Palmer  v.  Forbes, 
23  111.  237  (1860),  changed  by  Illinois  Const.  1870,  art.  11,  §  10. 

That  rolling  stock  is  personalty,  Neilson,  Benton  &  O'Donnel  v.  Iowa  East 
Railroad  Co.,  51  Iowa,  184,  1  N.  W.  434,  33  Am.  Rep.  124  (1S79) ;  Williamson 
V.  New  Jersey  Southern  Ry.,  29  N.  J.  Eq.  311  (1878) ;  Hoyle  v.  Plattsburgh 
&  M.  R.  Co.,  54  N.  Y.  314,  13  Am.  Rep.  595  (1873) ;  State  v.  Martin,  141  N.  C. 
832,  53  S.  E.  874  (1906). 


Sec.  1)  WHEN    CHATTELS  BECOME   FIXTURES  283 

FECHET  V.  DRAKE. 
(Supreme  Court  of  Arizona,  1SS7.    2  Ariz.  239,  12  Pac.  604.) 

[An  electric  light  company  executed  a  mortgage  of  the  land  on 
which  stood  its  powerhouse  "together  with  all  machinery  includmg  the 
boiler,  engine,  and  dynamo  now  situated  on  the  said  land  and  together 
with  all  and  singular  the  tenements,  hereditaments  and  appurtenances 
thereunto  belonging  or  in  any  wise  appertaining."  The  plaintiff  claims 
title  under  the  mortgage :  the  defendant  is  the  assignee  in  bankruptcy 
of  the  mortgagor.  The  action  is  to  quiet  title  to  the  electric  light  wires 
strung  on  poles  about  the  city  and  running  from  the  mortgaged  prop- 
ert>'.] 

Barnes,  J.'^  *  *  *  The  only  question  here  is  whether,  by  this 
mortgage,  there  passed  to  the  mortgagee  the  wires  so  strung  along  said 
masts.  Defendant  insists  that  the  same  did  not  pass,  and  that  he  may 
cut  such  wires,  and  treat  the  same  as  the  personal  property  of  the  mort- 
gagor. Plaintiff  insists  that  the  whole  plant,  including  the  wires  so 
strung,  passed  by  the  mortgage. 

This  raises  a  very  important  question.  It  is  urged  that  the  said 
wires  are  a  fixture  to  the  lot,  and  as  such  pass  by  the  mortgage.  There 
is  a  great  confusion  in  the  books  in  the  definition  of  the  term  "fix- 
tures."' It  is  held  to  denote  "such  articles  of  a  chattel  nature  as,  when 
once  annexed  to  the  realty,  may  not  be  removed  by  the  party  annexing 
them,  as  against  the  owner."  Ewell,  Fixt.  1,  and  cases  cited.  On  the 
other  hand,  just  the  reverse  is  held  to  be  the  true  definition;  that  is, 
chattels  annexed  that  may  be  removed,  etc.  Ferrard,  Fixt.  2,  and  cases 
cited.  It  is  difficult  to  determine  in  which  of  the  above  senses  it  is 
most  frequently  employed.     *     *     * 

Whichever  definition  may  be  regarded  best,  all  concur  tliat,  where 
the  chattel  is  "fixed"  or  "annexed"  physically  to  the  soil,  it  becomes  a 
part  of  the  realty. 

The  electric  light  current  was  affixed  to  the  soil  as  firmly  as  the  na- 
ture thereof  would  permit.  It  was  attached  physically  to  it,  and  be- 
came a  part  of  the  fixed  machinery.  To  that  extent  this  electric  light 
current  is  a  fixture.  But  it  is  contended  that,  while  this  is  so,  yet  that  a 
fixture  must  be  on  the  land,  and  that  that  may  not  be  a  fixture  which 
is  off  the  land. 

A  case  is  cited  holding  that,  where  an  engine  was  on  one  lot,  and 
connected  with  a  machine  on  another  lot,  that  the  machine  on  each  lot 
is  a  fixture  on  the  lot  on  which  it  is  constructed.  ^McDonald  v.  Minne- 
apolis Lumber  Co.,  28  Minn.  262,  9  N.  W.  765.  That  is  not  this  case. 
Here  one  lot  is  devoted  to  the  maintenance  of  an  electric  light  plant. 

II  Part  of  the  opiniou  is  omitted. 


284  FIXTURES  (Ch.  5 

Upon  it  are  erected  buildings,  and  in  them  are  placed  motive  power 
and  dynamo  by  which  an  electric  current  is  to  be  created,  and  from  the 
same  led  by  means  of  wires  annexed  thereto,  and  running  out  of  the 
building,  strung  on  poles  set  up  in  the  streets  of  the  city,  through  the 
city,  to  points  where  this  light  is  needed,  and,  returning  by  the  same 
means,  are  so  connected  with  the  dynamo  as  to  complete  the  circuit, 
and  so  make  effectual  the  operation  of  a  machine  of  which  it  is  an  in- 
tegral and  necessary  part.  It  has  a  "right  of  way"  along  the  streets 
of  the  city,  which  is  no  more  than  a  mere  license,  and  the  license  is  sub- 
ject to  the  public  use  of  the  streets,  and  in  no  way  affects  the  fee  to  the 
same.  Such  use  of  the  streets  is  a  public  use,  and  the  power  to  grant 
such  use  is  to  be  found  in  the  same  powers  that  grant  the  use  of  the 
streets  to  railway  companies,  gas  companies,  water  companies,  and  the 
like.  The  mortgage  or  sale  of  a  railway  would  carry  its  tracks  laid  in 
or  across  a  highway  annexed  to  its  tracks,  on  its  exclusive  right  of  way, 
or  even  its  locomotives  and  cars  thereon.  Rolling  stock  of  a  railway 
is  a  part  of  the  realty  where  a  railroad  is  mortgaged,  though  used  on 
lines  not  included  in  the  mortgage.  Minnesota  Co.  v.  St.  Paul  Co.,  2 
Wall.  609,  17  L.  Ed.  886;  and  see  note  to  this  case. 

The  later,  and  wo  think  the  better,  doctrine  does  not  require  an  ac- 
tual fastening  to  the  soil  as  essential  to  making  a  chattel  a  fixture. 
The  third  rule  stated  by  IVIr.  Carpenter  (2  Wall.  646)  is  sustained  by 
these  authorities:  "If  the  thing  be  essential  to  the  use  of  the  real  es- 
tate, and  has  uniformly  been  used  with  it,  then  it  passes,  though  not 
fastened  to  it."  Farrar  v.  Stackpole,  6  Greenl.  157,  19  Am.  Dec.  201 ; 
Snedeker  v.  Warring,  12  N.  Y.  170;  Pierce  v.  Emery,  32  N.  H.  484; 
Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.  609,  17  L.  Ed.  886;  Peoria,  etc., 
R.  R.  Co.  V.  Thompson,  103  111.  209. 

The  electric  current,  including  wires,  poles,  insulators,  and  applianc- 
es, was  an  essential  part  of  the  machine.  To  sever  it  was  to  destroy  it. 
The  object  of  the  law  is  to  preserve,  and  not  to  destroy.  A  machine 
made  of  many  parts,  operated  for  a  useful  purpose  may  have  great 
value.  Sever  the  parts  and  they  are  each  comparatively  worthless. 
And  it  is  the  duty  of  die  courts,  so  far  as  may  be,  to  so  construe  the 
law  that  the  usefulness  and  value  of  such  property  be  maintained.  In 
Regina  v.  North  Staffordshire  Ry.  Co.,  3  El.  &  El.  392,  Lord  Cockburn 
held  that  telegraph  apparatus,  consisting  of  posts,  driven  into  the 
ground,  and  wires  passing  through  sockets  annexed  to  the  posts,  but 
which  wires  might  be  disconnected  from  the  posts  without  injury,  or 
displacing  them,  were  a  part  of  the  appliances  of  the  defendant  rail- 
way company,  and  were  fixtures,  as  they  were  so  attached  that  it  was 
intended  that  they  should  remain  permanently  coimected  with  the  rail- 
way, or  the  premises  used  with  it,  and  remain  permanent  appendages 
to  it  as  essential  to  its  operation.     Such  is  this  case. 

We  have  so  far  considered  this  as  though  it  were  an  ordinary  con- 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTURES  285 

veyance  of  the  lot,  but  the  mortgage  conveyed  the  lot,  "together  with 
all  the  machinery,  including  the  boiler,  engine,  and  dynamo  now  situat- 
ed on  said  lot,  and  together  with  all  and  singular  the  tenements,  her- 
editaments, and  appurtenances  thereto  belonging,  or  in  any  wise  apper- 
taining." 

In  Pickerell  v.  Carson,  8  Iowa,  544,  a  sale  of  "the  fixtures  and  ap- 
purtenances contained  in  the  daguerreian  rooms,"  etc.,  embraced  all 
such  property  as  was  used  in  carrying  on  the  business,  such  as  maps, 
pictures,  stove,  carpet,  apparatus,  and  furniture,  machines  and  stock, 
as  appurtenances,  and  sky-light,  balcony,  partition,  etc.,  as  fixtures. 

The  electric  current  is,  then,  an  appurtenance  to  the  machinery  situ- 
ated on  that  lot,  and  is  therefore  covered  by  the  language  of  the  mort- 
gage, even  if  not  a  fixture.  Extra  rolls  in  a  rolling-mill  removable  at 
pleasure,  were  held  to  be  a  part  of  the  realty  as  appurtenant  to  it. 
Pyle  v.  Pennock,  2  Watts  &  S.  (Pa.)  390,  37  Am.  Dec.  517.  A  statue 
and  a  sun-dial  also.  Snedeker  v.  Warring,  12  N.  Y.  170;  Wadleig'.i 
v.  Janvrin,  41  N.  H.  503,  77  Am.  Dec.  780.  A  mortgage  of  a  railway, 
with  its  appurtenances  and  franchises,  includes  its  rolling  stock,  tools, 
and  all  moveable  property  used  in  its  operation.  Peoria,  etc.,  R.  R. 
Co.  V.  Thompson,  103  III.  209. 

The  ingenuity  of  invention,  creating  new  appliances  for  usefulness, 
constantly  brings  new  facts  for  the  consideration  of  the  courts ;  and 
to  these  established  principles  must  be  applied.  To  determine  whether 
a  particular  chattel  has  become  a  "fixture"  or  an  "appurtenance"  we 
must  be  guided  by  authority.  A  consideration  of  the  authorities  leads 
to  the  conclusion  that  in  each  case  it  is  a  mixed  c|uestion  of  law  and 
fact,  largely  to  be  determined  by  the  intention  of  the  parties,  and  the 
uses  to  which  the  chattel  is  devoted.  In  this  case  it  was  the  evident 
intention  of  the  parties  to  malve  this  electric  current  a  part  of  the  ma- 
chine mortgaged  and  attached  to  the  land — to  become  a  part  of  the  real- 
ty. We  hold,  therefore,  that  the  chattel  so  attached  passed  with  the 
mortgage. 

The  judgment  is  affirmed. '- 

12  Wires  strung  along  a  highway  have  been  held  subject  to  a  mechanic's 
lien  as  part  of  the  power  plant  with  which  they  were  connected.  Hughes  v. 
r^raljertville  Kl.'ctric  I-ight,  Heat  &  Power  Co.,  53  N.  J.  Eq.  435,  32  Atl.  G9 

(1895). 


286  FIXTURES  (Ch.  5 

CAPEHART  V.  FOSTER. 


(Supreme  Court  of  Minnesota,  1895.    61  Minn.  132,  63  N.  W.  257,  52  Am.  St. 

Rep.  5S2.) 


Canty,  J.  Plaintiff  was  the  owner  of  certain  hotel  property,  which 
he  mortgaged  to  defendant.  At  tlie  time  the  mortgage  was  made  the 
hotel  contained  268  gas  fixtures,  consisting  of  gas  chandeliers  and 
burners,  184  steam  radiators,  an  office  desk,  a  cigar  counter,  and  an 
electric  annunciator.  Defendant  foreclosed  his  mortgage,  purchased 
the  property  at  the  foreclosure  sale,  and  the  time  to  redeem  expired. 
Plaintiff,  being  still  in  possession,  threatened  to  remove  all  of  these 
articles;  whereupon  defendant  procured  a  temporary  writ  of  injunc- 
tion restraining  him  from  doing  so.  Defendant  also  obtained  posses- 
sion of  the  hotel  by  an  action  of  forcible  entry  and  detainer,  and  the 
action  in  which  the  injunction  was  issued  was  then  dismissed  by  stip- 
ulation. Thereafter  plaintiff  brought  this  action  for  damages  for  the 
conversion  of  said  property.  The  jury  returned  a  verdict  for  defend- 
ant, and  on  motion  of  plaintiff  the  court  below  granted  a  new  trial. 
From  the  order  granting  tlie  same,  defendant  appeals.  The  defend- 
ant claims  that  the  articles  in  question  are  and  always  were  a  part 
of  the  realty,  while  plaintiff  claims  that  they  are  and  always  were  per- 
sonal property. 

1.  During  all  of  said  time  these  gas  fixtures  were  screwed  to  the 
ends  of  the  gas  pipes  projecting  from  the  walls  and  ceilings,  and  can 
be  readily  unscrewed.  It  is  held  by  the  great  weight  of  authority  that, 
under  such  circumstances,  such  gas  fixtures  are  not  a  part  of  the 
realty,  even  as  between  vendor  and  vendee  or  mortgagor  and  mort- 
gagee; that  they  are  merely  a  part  of  the  furniture  of  the  room, — 
a  substitute  for  the  lamp  and  lampholders,  candlesticks  and  chande- 
liers formerly  used  to  hold  candles.  McKeage  v.  Hanover  Ins.  Co., 
81  N.  Y.  38,  Z7  Am.  Rep.  471 ;  Jarechi  v.  Philharmonic  Soc,  79  Pa. 
403,  21  Am.  Rep.  78;  Towne  v.  Fiske,  127  Mass.  125,  34  Am.  Rep. 
353;  Montague  v.  Dent,  10  Rich.  (S.  C.)  135,  67  Am.  Dec.  572;  Rog- 
ers V.  Crow,  40  Mo.  91,  93  Am.  Dec.  299;  Ewell,  Fixt.  299.  While 
this  doctrine  is  rather  doubtful  in  principle,  it  is  too  well  established 
as  the  law  of  the  country  generally  to  be  now  overturned. 

2.  The  steam  radiators  were  attached  to  the  steam  pipes  at  the  floor 
on  which  they  rested,  by  being  screwed  to  those  pipes.  We  are  of  the 
opinion  that  these  radiators  should  be  held  to  be  a  part  of  the  realty. 
The  distinction  thus' made  between  them  and  the  gas  fixtures  is  not 
clear  in  principle.     But   tlie   rule   applied  to  gas   fixtures   must  be 


Sec.  1)  WHEN    CHATTELS  BECOME  FIXTURES  287 

regarded  as  rather  an  arbitrary  exception  to  the  general  rule,  and 
should  not  be  extended  to  such  fixtures  as  radiators.  These  radiators 
were  put  in  immediately  after  the  building  was  erected.  There  is  no 
reason  for  holding  that  the  owner  did  not  intend  them  to  be  perma- 
nently annexed  to  the  steam  plant,  and  therefore  permanently  annexed 
to  the  realty.  He  might  remove  or  change  them,  and  so  might  he  re- 
move or  change  the  boiler  or  the  furnace,  which  is  also  a  part  of  the 
steam  plant.  Such  radiators  are  an  essential  part  of  such  plant,  and 
are  rarely  furnished  by  tenants  or  temporary  occupants  of  buildings 
as  a  part  of  the  furniture  brought  with  them  or  carried  away  with 
them,  but  the  owner  who  furnishes  the  rest  of  such  plaiit  usually  fur- 
nishes the  radiators  also.  When,  under  ordinary  circumstances,  tlie 
owner  of  the  building  attaches  such  radiators  to  his  steam  plant,  it 
should  be  held  that  he  intended  them  to  be  permanently  annexed  to  the 
realty.  We  are  cited  to  National  Bank  v.  Nortli,  160  Pa.  303,  2S 
Atl.  694,  which  holds  to  the  contrary.  This  case  holds  that  such 
radiators  are  analogous  to  gas  fixtures,  and  therefore  not  a  part  of  ■ 
the  realty.  By  following  the  same  process  of  reasoning  by  analogy 
you  would  strip  a  house  of  all  modern  improvements,  and  by  continu- 
ing the  process  you  would  overturn  the  greater  part  of  the  law  of 
fixtures.  A  correct  rule  should  not,  in  this  manner,  be  overturned  by 
an  inconsistent  exception. 

3.  The  electric  annunciator  was  attached  to  the  wall,  and  to  all 
the  wires  of  the  electric  call  or  electric  bell  system  of  the  hotel.  It 
was  also  a  part  of  the  realty. 

4.  The  office  desk  is  about  25  feet  long,  and  is  so  placed  that  the 
ends  fitted  against  projections  in  the  wall  in  such  a  manner  that  the 
space  behind  the  desk  forms  the  hotel  office.  This  desk  rests  on  the 
tile  floor  and  is  fastened  to  the  wall  at  each  end  by  means  of  short 
pieces  of  board,  which  are  fastened  to  the  wall  and  to  the  desk  by 
means  of  screws.  We  are  of  the  opinion  that  this  desk  is  a  part  of 
the  realty.  Woodham  v.  First  N.  Bank,  48  Minn.  67,  50  N.  W.  1015, 
31  Am.  St.  Rep.  622. 

5.  The  evidence  was  somewhat  conflicting  as  to  whether  the  cigar 
counter  was  fastened  to  the  floor,  and  as  to  whether  it  was  specially 
designed  for  the  hotel.  There  was  at  one  end  of  it  a  gate,  which  was 
attached  to  the  wall,  and  swung  against  the  cigar  stand,  to  which  it  at- 
tached itself  by  some  sort  of  a  latch  or  catch.  There  was  evidence 
tending  to  prove  that  it  stood  in  a  different  part  of  the  hotel  lobby 
during  a  part  of  the  time  since  the  hotel  was  erected.  We  are  of  the 
opinion  that,  under  these  circumstances,  it  was  a  question  for  the 
jury  whether  or  not  this  counter  was  a  part  of  the  realty.  The  acts 
of  the  defendant  were  such  as  to  make  him  guilty  of  conversion  of 
those  articles  which  were  not  a  part  of  the  realty.    This  disposes  of 


288  FIXTURES  (Ch.  J 

all  the  questions  in  the  case.  As  to  the  gas  fixtures,  the  verdict  was 
contrary  to  law,  and  the  order  granting  a  new  trial  should  be  af- 
firmed. 

So  ordered." 


HOOK  V.  BOLTON. 

(Supreme  Judicial  Court  of  Massachusetts,  190S.    199  Mass.  244,  85  N.  E.  175, 
17  L.  R.  A.  [N.  S.]  099,  127  Am.  St.  Rep.  487.) 

Tort  for  the  conversion  of  certain  articles  alleged  by  the  plaintiff  to 
be  chattels  but  claimed  by  the  defendant  as  fixtures  annexed  to  a 
dwelling  house  numbered  86  on  Bloomfield  street  in  Boston  which  she 
had  purchased  at  a  foreclosure  sale.  Writ  in  the  Municipal  Court  of 
the  City  of  Boston  dated  June  27,  1904. 

On  appeal  to  the  Superior  Court  the  case  was  tried  before  White, 
J.  At  the  close  of  the  evidence  the  plaintiff  asked  the  judge  to  give 
to  the  jury  the  following  instructions: 

"1.  I  rule  that  the  gas  fixtures  and  gas  chandeliers  in  the  house  were 
personal  property  as  matter  of  law,  and  did  not  pass  by  the  mortgage, 
and  that  the  plaintiflf  is  entitled  to  recover  damages  for  their  value 
on  June  13,  1904. 

"2.  Ordinary  steam  radiators,  detachable  from  the  pipes,  and  suita- 
ble for  use  in  any  building,  are  personal  property  as  matter  of  law. 
If  you  find  that  the  radiators  in  question  were  radiators  of  this  sort, 
I  rule  that  they  did  not  pass  by  the  mortgage  and  the  defendant  got 
no  title  to  them,  and  that  the  plaintiff  is  entitled  to  recover  as  dam- 
ages their  value  on  June  13,  1904. 

"3.  Gas  stoves  of  the  kind  described  in  the  testimony  in  this  case 
are  personal  property  as  matter  of  law  ;  they  did  not  pass  by  the  mort- 
gage:  the  defendant  got  no  title  to  these  stoves,  and  the  plaintiff  is 
entitled  to  recover  as  damages  their  value  on  June  13,  1904. 

"4.  Ordinary  portable  kitchen  stoves  or  ranges,  used  principally  for 
cooking,  with  hot  water  fronts,  and  with  stovepipes  running  into  the 

IS  Ace:  Shelvins;  and  counters,  Bri.^ham  v.  Over.street,  128  Ga.  447.  57  S. 
E.  484,  10  L.  R.  A.  (N.  S.)  452.  11  Ann.  Cas.  75  (1907).  See  Johnson  v.  Mosher, 
82  Iowa,  29,  47  N.  W.  99G  (1891). 

Large  .<;howcases,  that  could  not  be  removed  without  being  tal^en  apart, 
racks,  and  hangers,  fastened  to  floor  and  ceiling  respectively,  were  installed 
in  a  harness  shop  by  the  owner.  Held,  an  injunction  against  removal  will 
issue  in  favor  of  the  purchaser  of  the  land  as  against  the  purchaser  of  the 
tools  and  fixtures.  Owings  v.  Estes.  256  111.  553,  100  N.  E.  205,  43  L.  R.  A. 
(N.  S.)  075,  Ann.  Cas.  1913E,  305  (1912). 

Whether  three  large  saloon  bars  passed  to  a  mortgagee  of  the  realty  held 
a  (luestiou  for  the  jury.  Smith  v.  Bay  State  Sav.  Bank,  202  Jlass.  482,  88 
N.  E.  1086  (1909). 


Sec.  1)  WHEN    CHATTELS  BECOME   FIXTURES  2SS 

chimneys,  are  personal  property  as  matter  of  law ;  and  stoves  or  ranges 
of  this  character  did  not  pass  to  the  mortgagee  or  the  defendant  under 
the  mortgage,  but  the  plaintiff  is  entitled  to  recover  as  damages  for 
their  conversion  their  value  on  June  13,  1904. 

"5.  Ordinary  window  shades,  running  on  rollers  and  detachable 
from  their  sockets,  are  personal  property  as  matter  of  law;  and  win- 
dow shades  of  this  character  do  not  pass  to  the  mortgagee  or  the  de- 
fendant under  the  mortgage,  but  the  plaintiff  is  entitled  to  recover  as 
damages  for  their  conversion  their  value  on  June  13,  1904. 

"6.  Window  screens  and  screen  doors  of  the  ordinary  kind,  made 
for  temporary  use  during  the  summer  months  to  keep  out  flies  and 
other  insects,  bought  ready  made  without  being  specially  manufactured 
to  fit  this  house,  and  suitable  for  use  on  any  other  house  of  a  gen- 
erally similar  character,  are  personal  property  as  matter  of  law ;  and 
window  screens  and  screen  doors  of  this  character  did  not  pass  to 
the  mortgagee  or  the  defendant  under  the  mortgage,  but  the  plaintiff 
is  entitled  to  recover  as  damages  for  their  conversion  their  value  on 
June  13,  1904." 

The  judge  refused  to  give  the  instructions  requested,  and  left  it  to 
the  jury  to  determine  whether  the  articles  referred  to  in  the  requests 
for  instructions  had  become  a  part  of  the  real  estate  by  being  annexed 
thereto,  or  remained  personal  property. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $23.40, 
including  interest  since  June  13,  1904;  and  the  plaintiff  alleged  ex- 
ceptions. 

Knowlton,  C.  J.  This  is  an  action  of  tort  to  recover  the  value  of 
certain  articles  annexed  to  a  dwelling  house  and  used  with  it.  The 
defendant  claimed  title  under  the  foreclosure  of  a  mortgage  of  the 
real  estate.  The  plaintiff  requested  the  presiding  judge  to  rule  as  to 
several  classes  of  these  articles  that  they  were  personal  property  and 
not  fixtures. 

The  principles  of  law  applicable  to  cases  of  this  kind  have  been 
stated  many  times  in  recent  opinions  of  this  court.  In  Hopewell  Mills 
v.  Taunton  Savings  Bank,  150  Mass.  519,  521,  522,  23  N.  E.  327,  6 
L.  R.  A.  249,  15  Am.  St.  Rep.  235,  is  this  language:  "A  machine 
placed  in  a  building  is  found  to  be  real  estate  or  personal  property 
from  the  external  indications  which  show  whether  or  not  it  belongs 
to  the  building  as  an  article  designed  to  become  a  part  of  it  and  to 
be  used  with  it  to  promote  the  object  for  which  it  was  erected  or  to 
which  it  has  been  adapted  and  devoted,  an  article  intended  not  to  be 
taken  out  or  used  elsewhere,  unless  by  reason  of  some  unexpected 
change  in  the  use  of  the  building  itself.  The  tendency  of  the  modem 
cases  is  to  make  this  a  question  of  what  was  the  intention  with  which 
the  machine  was  put  in  place  [citing  cases].  Of  course  the  rule  is  the 
same  as  to  articles  attached  to  a  dwelling  house  as  it  is  as  to  ma- 
Big.Pebs.Pbop. — 19 


290  FIXTURES  (Ch.  5 

chines  put  into  a  factory.  As  bearing  upon  the  question,  "the  nature  of 
the  article  and  the  object,  the  effect,  and  the  mode  of  annexation  are 
all  to  be  considered."  Generally,  the  question  whether  an  article  at- 
tached to  a  building  belongs  to  the  real  estate  is  a  mixed  question  of 
law  and  fact. 

The  application  of  these  principles  to  the  facts  of  the  present  case 
require  us  to  sustain  the  rulings  of  the  judge  as  to  all  the  articles  ex- 
cept the  gas  stoves  and  the  curtains. 

It  is  contended  that  the  gas  fixtures  should  have  been  held  to  be 
personal  property  as  matter  of  law,  on  the  authority  of  Guthrie  v. 
Jones,  108  Mass.  191,  and  Towne  v.  Fiske,  127  Mass.  125,  34  Am. 
Rep.  353.  In  the  opinion  in  each  of  these  cases  there  is  language 
which  goes  beyond  the  decision  and  tends  to  support  the  plaintiff's 
contention.  The  later  case  merely  adopts  the  language  of  the  earlier 
one.  But  in  each  of  the  cases  the  question  before  the  court  was 
whether  the  gas  fixtures,  upon  the  evidence,  could  be  ruled  as  matter 
of  law  to  be  a  part  of  the  realty.  The  decision  was  simply  that  they 
could  not.  We  have  not  been  referred  to  any  case  in  which  the  court 
has  decided  that  gas  fixtures  attached  to  a  building  and  used  with  it 
are,  as  matter  of  law,  personal  property.  They  may  or  may  not  be, 
according  to  the  facts  and  circumstances  which  tend  to  show  that  they 
do  or  do  not  belong  to  the  building,  and  were  or  were  not  intended 
to  remain  with  it  as  a  part  of  it.  As  to  the  gas  fixtures,  the  steam 
radiators,  the  kitchen  range  and  the  window  screens  and  the  door 
screens  the  judge  was  right  in  submitting  the  questions  to  the  jury, 
with  proper  instructions.  Allen  v.  Mooney,  130  Mass.  155;  Ridge- 
way  Stove  Co.  v.  Way,  141  Mass.  557,  6  N.  E.  714;  Jennings- v. 
Vahey,  183  Mass.  47,  66  N.  E.  598,  97  Am.  St.  Rep.  409. 

The  gas  stove  and  the  window  shades,  running  on  rollers,  stand 
differently.  It  may  be  that  certain  apartment  houses,  or  other  dwell- 
ing houses  designed  for  occupation  by  tenants,  are  constructed  in 
some  of  our  cities  and  intended  to  be  used  in  such  a  way  that  the  in- 
troduction of  such  gas  stoves  and  window  shades  by  the  owner,  to  go 
with  the  house  as  a  part  of  it,  for  use  by  the  tenants,  may  hereafter 
be  proved  at  a  trial.  See  Jennings  v.  Vahey,  183  Mass.  47,  66  N.  E. 
598,  97  Am.  St.  Rep.  409.  It  is  entirely  possible  that  the  mode  of 
construction  and  use  of  certain  kinds  of  houses  may  be  such  that  arti- 
cles of  this  kind  will  be  made  a  part  of  the  house  for  permanent  re- 
tention and  use  in  the  places  where  they  are  put.  If  it  becomes  a 
practice  to  build  and  use  houses  in  such  a  way  these  articles  may  be 
put  in  as  fixtures.  As  to  the  application  of  the  law,  we  agree  with 
Lord  Halsbury  in  what  he  said  in  Leigh  v.  Taylor,  [1902]  App.  Cas. 
157,  161,  in  regard  to  the  decisions  of  the  courts:  "The  facts  have 
been  regarded  in  different  aspects,  according  to  the  fashion  of  the 
times,   the  mode   of  ornamentation,  and  the  mode  in  which   houses 


Sec.  1)  -WHEN    CHATTELS  BECOME  FIXTURES  291 

were  built,  and  the  degree  of  attachment  which  from  time  to  time  be- 
came necessary  or  not,  according  to  the  nature  of  the  structure  which 
was  being  dealt  with." 

In  the  present  case  we  discover  no  evidence  to  warrant  the  jury  in 
finding  that  the  gas  stove  and  window  shades  were  a  part  of  the  realty. 

50  far  as  appears,  the  building  in  question  was  an  ordinary  dwelling 
house  for  a  single  family,  and  there  is  nothing  to  show  that  it  was 
intended  to  be  occupied  or  used  differently  from  common  dwelling 
houses.  These  were  ordinary  articles  of  merchandise,  not  peculiarly 
fitted  for  use  in  this  house,  were  of  a  standard  pattern,  loosely  affixed, 
and  easily  removed,  and  were  of  the  nature  of  personal  property.  They 
were  put  into  the  house  by  the  mortgagor,  and  were  of  a  kind  of  arti- 
cles which  usually  are  carried  away  by  an  outgoing  occupant.  There 
was  nothing  to  show  that  the  owner  intended  to  annex  them  as  a  per- 
manent addition  to  the  real  estate.  We  think  upon  the  evidence,  the 
judge  was  wrong  in  submitting  to  the  jury  the  question  whether  tliey 
were  a  part  of  the  realty. 

Exceptions  sustained.^* 

1*  Storm  doors  and  windows  used  on  a  house  for  several  years  go  to  the 
real  mortgagee.  Roderick  v.  Sanboru,  106  Me.  159,  70  Atl.  203,  30  L.  R.  A. 
(X.  S.)  11^^9,  20  Ann.  Cas.  4C0  (1909) :  so  screens  and  screen  doors,  E.  M.  Fish 
Co.  V.  Young,  127  Wis.  149,  106  N.  W.  795  (1906).  I 

Ranges  and  stoves  were  treated  as  not  part  of  the  realty  in  Lambard  v. 
Pilie,  33  Me.  141  (18.51);  Jennings  v.  Vahey,  1S3  Mass.  47,  66  X.  E.  59S,  97 
Am.  St.  Rep.  409  (1903) ;  Cosgrove  v.  Trosscher,  62  App.  Div.  123,  70  X.  Y. 
Supp.  704  (1901) ;  Harrison  v.  Women's  Homeopathic  Ass'n,  134  Pa.  558,  19 
Atl.  S04,  19  Am.  St.  Rep.  714  (1S90).  They  were  treated  as  part  of  the  realty 
in  Mouti  v.  Barnes,  [1901]  1  Q.  B.  205;  Schaper  v.  Bibb,  71  -Md.  145,  17  Atl. 
935  (1S!^9) ;  Erdman  v.  Moore,  58  N.  J.  Law,  445,  33  Atl.  958  (1S9C) ;  Union 
Stove  Works  v.  Klingman,  20  App.  Div.  449,  46  X.  Y.  Supp.  721  (1)597). 

Hot  air,  steam,  and  hot  water  heating  apparatus  \^ere  treated  as  part  of 
the  realty  in  Thielman  v.  Carr,  75  111.  3S5  (1S74);  West  v.  Farmers'  Mut. 
Ins.  Co.,  117  Iowa,  147,  90  X.  W.  523  (1902);  Stebbins  v.  Culbreth,  86  Md. 
056,  39  Atl.  321  (1898) ;    United  States  Xat  Bank  v.  Bonacum,  33  Xeb.  820, 

51  X.  W.  233  (1S92). 

Ice  bo.'ces  were  treated  as  not  part  of  the  realty  in  Griffin  v.  Jansen,  39 
S.  W.  43,  19  Ky.  Law  Rep.  19  (1897) ;  as  part  of  the  realty,  depending  on  size, 
method  of  annexation,  and  purpose,  in  Scheifele  v.  Schmitz,  42  X.  J.  Eij.  700, 
1  Atl.  698,  11  Atl.  257  (1887);  Williams  v.  London,  61  Mi.sc.  Rep.  494.  115 
N.  Y.  Supp.  547  (1908) ;  Bank  &  Trust  Co.  v.  Fred  W.  Wolf  Co.,  114  Tenn. 
255,  S6  S.  W.  310  (1904). 

A  mortgage  of  certain  real  estate,  upon  which  was  a  theater  was  held,  as 
against  cue  claiming  under  the  mortgagor  to  cover  1,500  theater  chairs  regu- 
larly arranged  and  screwed  in  place  in  the  theater,  and  ten  large  mirrors 
imbedded  in  the  plaster  and  held  in  place  by  wooden  strips  so  molded  as  to 
form  a  part  of  the  general  scheme  of  decoration.  It  was  held  not  to  cover 
an  engine  and  dynamos  with  their  belting  and  piping,  also  wiring  and  switch- 
boards, all  of  which  had  been  installed  to  supply  electricity  as  a  temporary 
substitute  for  the  city  supply,  a  very  large  electric  chandelier,  electric  fans 
screwed  to  the  wall,  and  the  stage  scenery.  Xew  York  Life  Ins.  Co.  v.  Al- 
lison, 107  Fed.  179,  46  C.  C.  A.  229  (1901). 

See  U'Eyntouit  y.  Gregory,  L.  R.  3  Eq.  382  (1866);  In  re  De  Falbe,  [1901] 
1  Ch.  523. 


292  FIXTURES  (Ch.  5 

MILLER  V.  WILSON. 
(Supreme  Court  of  Iowa,  1SS7.    71  Iowa,  610,  33  N.  W.  12S.) 

[One  Kinnersly  owned  land  on  which  was  a  mill  run  by  water  power. 
He  sold  it  to  Lee  and  Wilson  reserving  by  contract  a  vendor's  lien. 
They  determined  to  install  steam  power  and  bought  machinery  for 
this  purpose.  They  gave  a  first  mortgage  on  the  machinery  to  Miller 
and  a  second  mortgage  on  it  to  Fowler.  This  action  is  to  settle  the 
rights  of  Kinnersly,  Miller  and  Fowler  in  the  machinery.] 

SeevErs,  J.^°  *  *  *  'j'j-jg  YiQxt  question  discussed  by  counsel  is 
whether,  at  the  time  Miller's  mortgage  was  executed,  the  property 
therein  described  was  personal  property.  We  find  the  fact  to  be  that, 
at  the  time  the  IMiller  mortgage  was  executed,  Wilson  and  Lee  had 
commenced  a  building  on  the  real  estate  purchased  of  Kinnersly,  and 
about  forty  feet  distant  from  the  mill,  in  which  the  engine  and  boiler 
were  to  be  placed,  and  the  former  connected  by  a  shaft  with  the  ma- 
chinery in  the  mill.  We  further  find  that,  at  the  time  the  mortgage 
was  executed,  none  of  the  machinery  was  attached  to  the  real  estate, 
nor  had  it  been  put  in  place.  It  seems  to  us  that  there  is  a  preponder- 
ance of  evidence  in  favor  of  the  proposition  just  stated.  Counsel  for 
appellant  have  separated  the  act  of  annexation  into  five  parts,  and  in- 
sist— First,  that  the  machinery  was  purchased  to  be  annexed ;  sec- 
ond, it  was  the  intention  to  annex  it;  third,  it  was  shipped  and  de- 
livered on  the  ground  for  that  purpose ;  fourth,  commencement  of 
the  work  on  its  actual  annexation ;  fifth,  actually  connecting  or  put- 
ting it  together.  The  first  three  propositions  will  be  conceded ;  but 
the  last  two,  under  the  facts,  we  find  cannot  be  regarded  as  having 
occurred  when  Miller's  mortgage  was  executed.  That  work  had  been 
commenced  for  the  purpose  and  with  the  intention  of  annexation  will 
be  conceded,  but  the  machinery,  all  of  it,  at  that  time,  as  we  find,  was 
lying  on  the  ground  near  the  mill,  or  in  it ;  but  none  of  it,  as  we  have 
said,  was  attached  or  put  in  place;  and  therefore,  in  accord  with  the 
rule  established  in  Sowden  v.  Craig,  26  Iowa,  156,  96  Am.  Dec.  125, 
and  First  Nat.  Bank  of  Waterloo  v.  Elmore,  52  Iowa,  541,  3  N.  W.  547, 
the  machinery  and  property  described  in  the  Miller  mortgage  must 
be  regarded  as  personal  property,  and  said  mortgage  is  the  prior  lien 
thereon.  The  Fowler  mortgage  was  executed  about  twenty  days  after 
the  one  given  to  Miller;  and,  while  there  had  in  the  mean  time  been 
some  work  done  in  the  direction  of  annexing  such  machinery  to  the 
real  estate,  we  think  tliat  under  the  cases  above  cited,  and  particularly 

i»  tart  of  tlie  opinion  is  omitted. 


Sec.  1)  WHEN    CHATTELS   BECOME  FIXTURES  293 

the  first  one,  such  machinery  cannot  be  regarded  as  real  estate,  and 
therefore  the  judgment  of  the  district  court  in  giving  Fowler  the  sec- 
ond hen  thereon  is  correct.^ °     *     *     * 


RAHM  V.  DOMAYER. 

(Supreme  Court  of  Iowa,  1908.     137  Iowa,  18,  114  N.  W.  5iG. 
15  L.  R.  A.  [N.  S.]  727.) 

Suit  in  replevin  to  recover  building  material.  A  demurrer  to  the  pe- 
tition was  overruled,  and,  the  defendant  electing  to  stand  on  his  de- 
murrer, judgment  was  entered  on  the  petition.  The  defendant  appeals. 
Affirmed. 

Sherwin,  J.^'  The  plaintiflF  alleged  in  his  petition  that  he  was  the 
owner  of  certain  finishing  lumber,  doors,  and  transoms  which  had 
been  placed  by  the  defendant  in  an  unfinished  building  for  the  purpose 
of  completing  and  finishing  the  same;  that  suitable  and  proper  open- 
ings for  the  doors  and  transoms  in  question  had  been  left  in  the  build- 
ing ;  and  that  said  material,  including  the  finishing  lumber,  was  neces- 
sary for  the  completion  of  the  same,  and  that  he  became  the  owner  of 
such  material  by  purchase  of  the  real  estate  on  which  the  building 
was  located. 

The  demurrer  made  the  point  that  no  cause  of  action  was  stated  in 
the  petition,  because  it  showed  on  its  face  that  the  lumber  and  ma- 
terial was  in  no  manner  fastened  to  the  building,  and  was  therefore  no 
part  thereof,  and  did  not  pass  with  the  realty.  The  petition  does  state 
that  the  material  described  was  in  no  manner  fastened  to  the  building, 
and  the  sole  question  for  determination  is  whether  it  passed  with  the 
general  conveyance  of  the  land.  The  question  is  an  interesting  one, 
and  the  decisions  thereon  in  the  several  jurisdictions  are  far  from  har- 
monious.    *     *     * 

In  Fletcher  v.  Kelly,  88  Iowa,  475,  55  N.  W.  474,  21  L.  R.  A. '347, 
Judge  Kinney,  speaking  for  the  court,  said :  "The  trend  of  modem 
decisions  is  that,  subject  to  the  manner  of  annexation  to  the  realty, 
and  to  the  use  and  purpose  of  the  realty  with  which  the  thing  in  con- 
troversy is  connected,  its  character  as  a  fixture  or  not  is  to  be  deter- 
mined by  the  intention  of  the  party  making  the  annexation."  The  sub- 
ject was  again  discussed  in  Thomson  v.  Smith,  111  Iowa,  718,  83  N. 
W.  789,  50  L.  R.  A.  780,  82  Am.  St.  Rep.  541,  and  the  same  general 
rule  adhered  to.  See,  also.  Congregational  Society  v.  Fleming,  11 
Iowa,  533,  79  Am.  Dec.  511. 

18  Contra,  Patton  v.  Moore,  16  W.  Va.  428,  37  Am.  Rep.  7S9  (ISSO). 
1'  Part  of  the  opinion  Is  omitted. 


294  FIXTURES  (Ch.  5 

It  is  the  undoubted  holding  of  these  and  others  of  our  own  deci- 
sions that  the  intention  of  the  party  making  the  annexation  is  the  ques- 
tion of  controlling  importance  in  all  cases  of  this  kind,  and  that  physi- 
cal attachment  need  be  of  no  particular  kind  or  degree,  and  that  any 
annexation  which,  however  slight  it  may  be,  indicates  the  intent,  is 
sufficient  to  meet  the  demands  of  the  rule.  In  19  Cyc.  1036,  atten- 
tion is  called  to  the  diversity  of  opinion  on  the  question,  and  it  is  said : 
"But  as  physical  annexation  of  a  chattel  alone  is  not  always  necessary 
to  its  becoming  part  of  the  realty,  and  as  physical  annexation  alone 
does  not  necessarily  make  a  part  of  the  realty,  but  in  either  case  other 
circumstances  may  combine  to  prevent  the  one  or  the  other,  it  is  be- 
lieved that  the  true  rule  is  that  articles  not  otherwise  attached  to  the 
realty  than  by  their  own  weight  are  prima  facie  personalty,  and  arti- 
cles affixed  to  the  land  in  fact,  although  only  slightly,  are  prima  facie 
realty,  and  that  the  burden  of  proof  is  on  the  one  contending  that 
the  former  is  realty  or  the  latter  is  personalty."  It  seems  to  us  that 
such  a  rule  would  more  nearlj'  cover  all  cases  than  any  other,  and  that 
under  it  the  actual  intent  would  always  be  the  controlling  question,  re- 
gardless of  where  the  burden  of  proof  rested.  This  controlling  in- 
tention is  that  which  the  law  deduces  from  all  the  circumstances  of 
the  annexation,  and  not  the  secret  intention  with  which  it  is  annexed. 
In  the  instant  case  the  defendant  owned  an  incomplete  and  unfinished 
building.  He  bought  and  placed  therein  the  material  fitted  and  neces- 
sary for  the  completion  thereof,  and  with  the  intent  to  so  use  it.  He 
did  not  finish  the  building  before  he  sold  it  with  the  land  on  which 
it  stood,  and,  when  sold,  the  material  was  still  in  the  building;  and, 
while  it  was  only  annexed  thereto  by  its  location  and  its  own  weight, 
we  think  it  passed  with  the  conveyance.  The  following  cases  in  other 
jurisdictions  sustain  this  view:  Byrne  v.  Werner,  138  Mich.  328,  101 
N.  W.  555,  69  L.  R.  A.  900,  110  Am.  St.  Rep.  315;  McLaughlin  v. 
Johnson,  46  111.  163;  Hackett  v.  Amsden,  57  Vt.  432;  1  Kerr  on 
Real  Prop.  154.    And  see  cases  cited  in  19  Cyc.  1036,  1045. 

We  think  the  demurrer  rightly  overruled,  and  the  judgment  is  af- 
firmed.'* 

18  Ace:  Bvrne  v.  Werner,  138  Mich.  328,  101  N.  W.  555,  69  L.  R.  A.  900, 
110  Am.  St.  Rep.  315  (1904). 

Contra:  Blue  v.  Gunn,  114  Tenn.  414,  S7  S.  W.  40S,  G9  L.  R.  A.  892,  108 
Am.  St  Rep.  912,  4  Aim.  Cas.  1157  (1904). 

A.  prepared  storm  windows  for  his  house  and  put  them  in  place  for  a 
winter,  without  putting  hooks  on  them  or  otherwise  fastening  them,  and  then 
took  them  down.  Held,  they  do  not  pass  by  a  eonveyanfo  of  the  house.  Peck 
V.  Batchelder,  40  Vt.  233,  94  Am.  Dec.  392  (1867).  See  Woodman  v.  Pease,  17 
N.  H.  282  (1845) ;    Manchester  v.  Rundlett,  23  N.  H.  271  (1851). 

Material  brought  on  the  land  to  make  a  fence  cannot  be  attached  as  per- 
sonalty. Hackett  v.  .\msden,  57  Vt.  432  (1SS5).  See  Conklln  v.  Parsons,  2 
Pin.  (Wis.)  264  (1849).  Contra :  Cook  v.  Whiting,  16  III.  480  (1855) ;  Longino 
V.  Wester  (Tex.  Civ.  App.)  88  S.  W.  445  (1905). 


Seel)  WHEN    CHATTELS   BECOME   FIXTURES  235 

NOBLE  V.  BOSWORTH. 
(Supreme  Judicial  Court  of  Massachusetts,  1837.    19  Pick.  314.) 

Sh.wv,  C.  J.  It  will  probably  not  be  necessary  to  go  much  at  lar^e 
into  the  facts  of  this  case,  to  explain  the  only  material  principle  of 
law  on  which  it  is  decided.  The  action  is  trespass  for  taking  and  car- 
rying away  one  iron  kettle  and  two  copper  kettles.  There  are  two 
counts ;  one,  quare  clausum,  charging  the  taking  away  of  the  kettles 
as  aggravation ;  the  other,  de  bonis  asportatis,  in  which  tlie  gravamen 
is,  the  taking  away  and  converting  the  same  kettles. 

The  defendant,  by  deed  of  June  4,  1835,  duly  executed,  acknowl- 
edged and  delivered,  conveyed  to  the  plaintiff  a  parcel  of  real  estate, 
on  which  was  a  dye-house,  and  in  that  dye-house  were  the  kettles  in 
question.  They  were  firmly  set  in  brick  work,  and  constituted  a  valua- 
ble part  of  the  estate,  and  were  a  part  of  the  realty.  By  mutual  agree- 
ment, the  grantor  retained  possession  till  April,  1836,  at  about  which 
time  the  kettles  were  taken  down  by  the  defendant  and  removed.  The 
deed  conveys  the  premises,  including  the  dye-house  and  appurtenances, 
but  making  no  mention  of  the  kettles,  either  by  expressly  excepting 
or  including  them.  The  deed  was  not  delivered  at  the  time  of  its  date, 
and  probably  not  till  some  months  after,  but  this  is  not  material. 

The  defence  relied  upon  was,  that  at  the  time  the  bargain  was  made 
for  a  sale  of  the  premises,  by  the  defendant  to  the  plaintiff,  June  4, 
1835,  it  was  agreed  by  Bosworth,  the  owner  of  the  dye-house  with 
one  Chapin,  to  sell  him  the  three  kettles,  that  this  was  known  to  Noble, 
and  it  was  understood  and  agreed,  that  by  the  deed  from  Eosworth 
to  Noble,  the  kettles  were  not  intended  to  be  conveyed,  and  that  al- 
though the  agreement  between  Bosworth  and  Chapin,  from  accidental 
causes  fell  through  and  was  not  executed,  yet  that  the  property  in  the 
kettles  remained  in  the  defendant,  and  did  not  pass  by  his  deed  to  the 
plaintiff. 

This  presents  two  questions:  First,  whether  the  deed,  by  its  ordi- 
nary effect  and  operation,  transferred  the  property  in  these  dye-ket- 
tles ;  and  if  so,  then  secondly,  whether  that  effect  can  be  controlled  by 
the  parol  agreement  made  before  or  at  the  time  of  the  delivery  of 
the  deed,  that  the  kettles  should  not  be  considered  as  included  in  the 
deed. 

As  to  the  first,  whatever  doubt  there  might  be,  if  kettles  were  erected 
in  like  manner  by  a  tenant  on  the  leased  premises,  for  the  purposes  of 
his  trade,  or  by  a  mortgagor  after  the  estate  had  been  mortgaged,  we 
have  no  doubt,  that  where  an  owner  erects  a  dye-house  on  his  own  land, 
and  sets  up  dye-kettles  therein,  firmly  secured  in  brick  work,  they  be- 
come part  of  the  realty,  and  pass  by  a  deed  of  the  land  without  ex- 


296  FIXTURES  (Ch.  5 

press  words.  The  legal  effect  and  operation  of  such  a  deed  is  to  vest 
tlie  entire  right  and  property  in  the  kettles  in  the  grantee.  Union  Bank 
V.  Emerson,  15  Mass.  159. 

2.  Then  is  it  competent  for  the  grantor  to  control  or  restrain  this 
legal  effect,  by  proof  of  a  parol  agreement,  made  previously  to  or  at 
the  time  of  the  delivery  of  the  deed?  The  Court  are  all  of  opinion, 
that  it  is  not.  It  would  be  as  well  contrary  to  the  general  rule  of  the 
common  law,  which  provides  that  the  terms  of  an  instrument  in  writ- 
ing shall  not  be  altered  or  controlled  by  a  parol  agreement,  as  against 
the  provision  of  the  statutes,  which  requires  that  all  rights  and  inter- 
ests in  real  estate,  shall  be  manifested  by  some  instrument  in  writing, 
and  that  no  action  shall  be  brought  on  any  agreement  for  the  sale  of 
lands,  or  any  interest  in  or  concerning  the  same,  unless  in  writing. 
St.  1783,  c.  37,  §§  1,  2,  3.  It  is  as  much  against  these  rules  to  admit 
parol  evidence,  to  prevent  or  restrain  the  legal  inferences  and  conse- 
quences of  a  deed,  as  to  control  and  alter  its  express  provisions.  Pat- 
tison  V.  Hull,  9  Cow.  (N.  Y.)  754.  A  deed  passes  all  the  incidents  to 
the  land  as  well  as  the  land  itself,  and  as  much  when  not  expressed  as 
when  they  are.  If  the  parol  agreement  were  made  before  the  execu- 
tion and  delivery  of  the  deed,  it  is  to  be  regarded  as  part  of  the  nego- 
tiation and  discussion  respecting  the  terms  of  the  purchase  and  sale, 
which  is  considered  as  merged  and  embodied  in  the  deed  itself  as  the 
final  and  authoritative  expression  of  the  agreement  and  determination 
of  the  parties  on  the  subject.  If  it  was  made  at  the  time  of  the  de- 
livery of  the  deed,  then  it  must  be  deemed  an  exception,  reservation  or 
defeasance,  and  being  repugnant  to  the  terms  and  effect  of  the  deed, 
it  is  void. 

For  tliese  reasons,  the  Court  are  of  opinion  that  the  verdict,  which 
was  for  the  defendant,  must  be  set  aside,  and  a  new  trial  granted.'" 

19  Ace.  as  to  an  attempted  parol  reservation  of  a  barn.  Leonard  v.  Clough, 
133  N.  Y.  292,  31  N.  E.  93,  16  L.  R.  A.  305  (1802).  Contra,  Fiederick  v.  Devol, 
15  Ind.  357  (1S60). 

A.  severed  a  large  slab  of  stone  from  a  ledge  on  his  land  intending  to 
remove  the  slab.  He  was  unable  to  do  so  at  the  time  but  never  abandoned 
his  intention.  Later  he  conveyed  the  land  to  B.  by  deed  excepting  the  slab 
by  parol.  B.  subsequently  sold  the  slab  to  C.  A.  brought  trover  against  C. 
Held,  the  parol  exception  is  admissible  and  the  plaintiff  may  recover  in 
trover.  Noble  v.  Sylvester,  42  Vt.  146  (1869).  See,  where  there  was  no  parol 
exception,  Fulton  v.  Norton,  64  Me.  410  (1875). 


Sec.  1)  WHEN    CHATTELS   BECOME  FIXTURES  297 

DAVIS  V.  EMERY. 

(Supreme  Judicial  Court  of  Maine,  1870.     61  Me.  140,  14  Am.  Rep.  553.) 

ApplEton,  C.  J.^°  This  is  an  action  of  trover  to  recover  the  value 
of  a  building  to  which  the  plaintiff  claims  title  by  a  bill  of  sale  in  the 
following  words : 

"$40.00  Newfield,  Nov.  6,  1865. 

"J.  B.  Davis  bought  of  Elizabeth  Emery  one  building  23  feet  wide 
and  50  feet  long,  now  standing  west  of  my  house  and  barn.  Said 
building  is  to  be  moved  off  from  where  it  now  stands  by  the  first  of 
May  next.    Price  forty  dollars.    Received  pay. 

"Elizabeth  Emery." 

The  building  was  not  removed  within  the  time  specified.  Upon  the 
foregoing  writing  the  justice  presiding  instructed  the  jury  that  if  they 
found  that  the  term  limited  in  said  writing  was  not  extended  prior  to 
the  first  of  May,  A.  D.  1866,  by  the  defendant,  that  the  title  to  the 
building  would  revest  in  the  defendant,  and  that  the  plaintiff  would  not 
have  a  right  to  go  on  and  remove  the  same. 

The  plaintiff  bought  the  barn  and  paid  for  it.  As  between  the  par- 
ties to  this  suit  it  must  be  deemed  personal  property.  The  defendant 
having  sold  it  as  such  and  received  the  price  agreed  upon  cannot  claim 
it  as  a  part  of  the  realty.  It  stands  precisely  as  if  it  had  been  a  sale 
of  a  cart  or  a  wagon,  which  was  to  be  stored  by  the  seller  for  a  specific 
time,  and  which  was  not  removed  by  the  buyer  within  that  time.  The 
title  to  the  article  sold  and  paid  for  would  not  be  changed  by  the  neg- 
lect of  the  purchaser  to  remove  it  at  the  stipulated  day.     *     *     * 

The  law  relating  to  fixtures,  whether  as  between  grantor  and  gran- 
tee, mortgagor  and  mortgagee,  or  landlord  and  tenant,  has  no  bearing 
upon  the  question  under  consideration.  As  between  the  buyer  and 
seller  the  building  was  a  personal  chattel,  which  the  purchaser  was  to 
remove  in  a  given  time,  and  until  that  time  it  was  to  remain  on  the 
seller's  land.  It  was  the  simple  case  of  a  merchant  storing  goods  for 
a   limited   time    for   the   purchaser,    who   had   paid   the   price   there- 

Ty-\*«  ^  '^  'is 

Exceptions  sustained.-^ 

Cutting,  Ke\t,  Dickerson,  and  Tapley,  JJ.,  concur.  Barrows, 
Walton,  and  Danforth,  JJ.,  dissent. 

20  Tlie  statement  of  facts,  part  of  the  opinion  of  Appleton,  C.  J.,  and  the 
dissenting  opinion  of  Barrows,  J.,  are  omitted. 

21  Ace.  as  to  a  parol  sale  of  millstones  to  be  removed  from  the  mill.  Bost- 
wick  V.  Leach,  3  Day  (Conn.)  476  (1S09). 

Contra,  brick  wall  of  a  building  destroyed  by  fire.  Meyers  v.  Sehemp,  67 
111.  469  (1873) ;  hay  scales.  Dudley  v.  Foote,  63  N.  H.  57,  56  Am.  Rep.  489 
(1SS4).     See,  also,  Davis  v.  Eastbam,  SI  Ky.  116  (1SS3). 

A.  erected  a  house  on  B.'s  land  under  such  circumstances  that  it  became 
a  part  of  B.'s  realty.     B.  agreed  by  parol  that  the  house  should  be  A.'s  per- 


298  FIXTURES  (Ch.  5 


TYSON  V.  POST. 

(Court  of  Appeals  of  New  York,  1SS8.    108  N.  Y.  217,  15  N.  E.  316,  2  Am.  St. 

Rep.  409.) 

Appeals  from  orders  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  made  May  14,  1885,  which  reversed 
judgments  in  favor  of  plaintiffs,  entered  upon  decisions  of  the  court  on 
trial  at  Special  Term. 

These  actions  were  brought  to  foreclose  two  purchase-money  mort- 
gages executed  by  defendant  Cooney  upon  certain  premises  situate  in 
Queens  county. 

There  was  attached  to  the  premises  at  the  time  of  the  sale  and  con- 
veyance by  the  mortgagees  and  the  execution  of  the  mortgage  the 
plant  and  machinery  of  two  marine  railways,  the  use  of  which  had 
been  abandoned.  The  controversy  was  as  to  these  fixtures,  of  which 
defendant  Post  claimed  to  be  the  owner.  The  negotiations  for  the 
purchase  were  between  plaintiffs  and  one  Carroll, '  the  conveyance 
was  made  to  Cooney  as  the  nominee  of  Carroll.  Defendant  Post  claim- 
ed that  he  advanced  the  money  to  complete  the  cash  payment  required 
by  the  contract  of  purchase  under  the  understanding  and  oral  agree- 
ment of  all  the  parties  that  he  should  have  the  title  to  said  plant  and 
machinery  and  the  right  to  remove  them  at  any  time  from  the  premises. 

Further  facts  appear  in  the  opinion. 

Andrews,  J."^  The  question  whether  the  defendant  Post  acquired 
title  to  the  plant  and  machinery  of  the  marine  railways  embraced  in 
the  plaintift''s  mortgage,  as  security  for  the  $6,200  paid  by  him  to  the 
plaintiff's  at  the  request  of  Carroll,  to  enable  the  latter  to  complete 
the  first  payment  on  the  contract  with  the  plaintiffs  for  the  purchase  of 
the  land,  does  not  depend  upon  the  character  of  the  property,  whether 
real  or  personal,  when  placed  upon  the  mortgaged  premises.  There 
can  be  little  doubt,  however,  that  the  machinery,  shafting,  rollers  and 
other  articles  became  as  between  vendor  and  vendee  and  mortgagor 
and  mortgagee,  fixtures  and  a  part  of  the  realty.  McRea  v.  Central 
Nat.  Bk.,  66  N.  Y.  489.  But,  as  by  agreement,  for  tlie  purpose  of 
protecting  the  rights  of  vendors  of  personalty,  or  of  creditors,  chattels 
may  retain  their  character  as  chattels,  notwithstanding  their  annexa- 
tion to  the  land  in  such  a  way  as  in  the  absence  of  an  agreement  would 

sonal  property.  A.  sold  the  house  to  C.  as  personal  property.  The  land  was 
conveyed  by  B.  to  D.,  the  latter  knowing  of  A.'s  understanding  with  13.  C. 
removed  the  house.  Held,  D.  may  maintain  an  action  of  tort  against  C.  for 
this  removal.  Gibbs  v.  Estey,  15  Gray  (Mass.)  587  (IStJO).  Ace:  Beeler  v.  C. 
C.  Mercantile  Co.,  S  Idaho,  614,  70  Pac.  9-13,  60  L.  R.  A.  2S3,  1  Ann.  Cas.  310 
(1902).  Contra,  Fuller  v.  Tabor,  39  Me.  519  (1855). 
22  Part  of  the  opinion  is  omitted. 


Sec.  1)  WHEN    CHATTELS   BECOME   FIXTURES  299 

constitute  them  fixtures  (Ford  v.  Cobb,  20  N.  Y.  344 ;  Sisson  v.  Hib- 
bard,  75  N.  Y.  542),  so,  also,  it  would  seem  to  follow,  that  by  conven- 
tion, the  owner  of  land  may  reimpress  the  character  of  personalty  on 
chattels  which,  by  annexation  to  the  land,  have  become  fixtures  ac- 
cording to  the  ordinary  rule  of  law,  provided  only  that  they  have 
not  so  incorporated  as  to  lose  their  identity  and  the  reconversion*  does 
not  interfere  with  the  rights  of  creditors  or  third  persons.  The  plant 
and  machinery  in  question  were  personal  property  when  placed  on  the 
land,  and  the  only  issue  presented  is,  did  the  plaintiffs  agree  with  Post 
that  he  might  take  the  title  to  the  plant  and  machinery  for  his  se- 
curity, free  of  the  mortgage,  and  remove  them  at  any  time  from  the 
mortgaged  premises,  thereby  reimpressing  the  property  with  the  char- 
acter of  personalty.  In  determining  this  question  it  does  not  seem  to 
us  to  be  very  material  to  inquire  whether  the  deed  from  the  plaintiffs 
to  Cooney  (the  nominee  of  Carroll),  and  the  mortgage  back  embraced, 
or  was  intended  to  embrace  the  plant  and  machinery.  Post  was  not 
a  party  to  the  instruments  and  is  not  concluded  by  them.  The  rights 
of  Post  depend  wholly  upon  his  agreement  with  the  plaintiffs,  and  if 
they  received  his  money  upon  the  agreement  that  he  should  have  the 
plant  and  machinery,  with  the  right  to  remove  tliem  without  restriction 
as  to  time,  the  agreement  was  valid  although  by  parol,  and  even  if  it 
contradicts  the  legal  import  of  the  mortgage,  it  being  an  agreement  be- 
tween different  parties,  it  is  not  within  the  rule  which  forbids  parol  evi- 
dence to  contradict  a  written  instrument.     *     *     * 

The  orders  of  the  General  Term,  should,  therefore,  be  affirmed,  and 
judgments  absolute  directed  in  accordance  with  the  stipulations. 


GUERNSEY  v.  PHINIZY. 

(Supreme  Court  of  Georgia,  1901.     113   Ga.  898,  39  S.  E.  402.   84  Am.   St. 

Rep.  270.) 

Simmons,  C.  J.-"  It  appears  from  the  record  that  'Mrs.  Guernsey 
and  Mervey  S.  Hoadley  owned  a  lot  of  land  in  the  city  of  Augusta. 
On  the  lot  was  a  brick  building.  They  offered  the  property  for  sale 
through  an  agent,  and  by  him  it  was  sold  to  Phinizy  at  the  price  of 
$16,000.  Prior  to  this  the  vendors  had  given  a  security  deed  to  Stet- 
son, the  latter  giving  them  a  bond  for  titles  to  reconvey  upon  the  pay- 
ment of  the  money  loaned.  By  the  contract  of  sale  this  security  deed 
was  to  be  paid  off  and  the  property  reconveyed  before  Phinizy  was 
to  pay  for  it  in  full.  Considerable  delay  occurred  by  reason  of  the 
loss  of  the  bond  for  titles  made  by  Stetson,  the  latter  refusing  to  re- 

23  Part  of  the  opinion  is  omitted. 


300  FIXTURES  (Ch.  5 

convey  until  the  bond  was  produced  or  a  bond  of  indemnity  given  him. 
Pending  the  negotiations  the  house  was  accidentally  destroyed  by  fire. 
After  the  fire  it  appears  that  the  vendors  undertook  to  rescind  the 
contract  of  sale.  Phinizy  refused  to  rescind,  and  tendered  for  tlie 
lot  a  certain  amount  of  money,  less  than  the  original  contract  price. 
This'  was  refused,  the  vendors  demanding  the  full  contract  price. 
Thereupon  the  vendee  filed  an  equitable  petition,  setting  out  these  facts, 
and  praying  a  specific  performance  of  the  contract,  and  that  a  deduc- 
tion be  made  because  of  the  destruction  by  fire  of  the  improvements 
upon  the  lot.  Upon  the  trial  the  jury  found  that,  at  the  time  the 
contract  was  entered  into,  the  land  itself,  without  the  improvements 
was  worth  $8,000,  and  that  since  the  fire  the  vendee  had  tendered 
that  amount  for  the  land.  The  court  decreed  that  the  plaintiff  should 
pay  to  the  vendors  the  sum  of  $8,000,  and  that  they  should  make  him 
a  deed  to  the  land  and  remove  therefrom  certain  incumbrances,  in- 
cluding that  of  Stetson.  This  verdict  and  decree  were  not  excepted 
to  by  either  party,  but,  between  the  rendition  of  the  verdict  and  the 
making  of  the  decree,  a  dispute  arose  as  to  the  ownership  of  the  brick 
left  upon  the  lot  after  the  fire.  It  .appears  that  some  of  these  brick 
constituted  a  part  of  the  remaining  foundations  of  the  building,  while 
the  remainder  were  part  of  the  debris  which  had  fallen  and  which 
remained  on  the  land  after  the  fire.  The  defendants  amended  their 
answer,  after  verdict,  by  setting  out  these  facts  and  praying  that  the 
brick  be  decreed  to  belong  to  them.  Phinizy  resisted  this  by  a  de- 
murrer and  by  an  answer.  The  court  decided  that  the  brick  belonged 
to  Phinizy.  *  *  *  The  defendants  excepted  to  the  decree  as  to 
the  ownership  of  the  brick.     *     *     * 

1.  Whatever  may  be  the  law  of  fixtures  with  regard  to  articles  not 
firmly  annexed  to  the  soil,  it  is  clear  that  when  the  owner  of  land 
uses  brick,  lumber,  and  other  personalty  for  the  construction  of  a  sub- 
stantial and  permanent  building  upon  his  land,  they  become  a  part  of 
the  realty.  Brick,  though  personal  property  before  they  are  put  in 
the  house,  become  afterwards  attached  to  and  a  part  of  the  land  and 
so  remain  until  severed  and  reconverted  into  personalty  by  the  own- 
er. If  a' house  of  brick  be  destroyed  by  accident  and  the  walls  fall, 
the  brick  may  be  converted  into  personalty  by  any  act  of  the  owner 
which  evidences  his  intention  to  so  sever  them.  As  long,  however,  as 
tlie  owner  leaves  them  as  they  have  fallen,  some  of  them  in  the  founda- 
tion walls  and  some  scattered  over  the  land,  they  remain  real  property 
and  a  part  of  the  land.  In  the  case  of  Rogers  v.  Gilinger,  30  Pa.  185, 
72  Am.  Dec.  694,  it  appeared  that  a  house  was  blown  down  by  a  storm, 
the  lumber  of  which  it  had  been  composed  falling  upon  the  land.  Sub- 
sequently the  land  was  sold,  and  a  contest  arose  over  the  ownership 
of  this  lumber.  It  was  held  that  the  lumber  remained  realty  and  a 
part  of  the  land,  and  passed,  with  the  land,  to  the  vendee.     In  the 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  301 

opinion  Mr.  Justice  Strong  said :  "What,  then,  is  the  criterion  by  which 
we  are  to  determine  whether  that  which  was  once  part  of  the  realty  has 
become  personalty  on  being  detached  ?  Not  capability  of  restoration  to 
the  former  connection  with  the  freehold,  as  is  contended,  for  the  tree 
prostrated  by  the  tempest  is  incapable  of  re-annexation  to  the  soil, 
and  yet  it  remains  realty.  The  true  rule  would  rather  seem  to  be  that 
that  which  was  real  shall  continue  real  until  the  owner  of  the  free- 
hold shall,  by  his  election,  give  it  a  different  character."  This  deci- 
sion was  cited,  approved,  and  followed  in  Leidy  v.  Proctor,  97  Pa. 
486,  the  court  holding  that  timber  which  had  fallen  but  which  had  not 
been  converted  into  rails,  etc.,  by  the  owner,  passed  to  the  purchaser 
as  a  part  of  the  realty.  The  case  of  Rogers  v.  Gilinger  is  also  cited 
with  approval  in  Washb.  Real  Prop.  (5th  Ed.)  16;  4  Shars.  &  Budd, 
Lead.  Cas.  Real.  Prop.  518;  1  Kerr,  Real  Prop.  96.  In  the  present 
case  the  record  does  not  disclose  that  the  vendors  of  the  premises  sev- 
ered the  bricks  from  the  land  or  did  any  act  evincing  an  intention  to 
reconvert  them  into  personalty.  We  think  that  the  brick  remains, 
therefore,  a  part  of  the  realty,  and  that  the  judge  did  not  err  in  holding 
that  they  belonged  to  the  purchaser.  *  *  * 
Judgment  affirmed.^* 


SECTION  2.— ANNEXATION  TO  THE  LAND  OF  ANOTHER 
I.  Landlord  and  Tenant 


WYSTOW'S  CASE. 
(Court  of  Common  Pleas,  1523.     Y.  B.  14  Hen.  VTII.  2.5  b.) 

In  trespass  brought  by  Wystow  de  Graces  June  for  the  taking  of  a 
mill  stone.  To  which  the  defendant  says  that  the  Abbott  of  Saint 
Albons  was  seised  of  the  manor  of  Redbome  in  the  County,  etc.,  be- 
fore the  trespass  and  at  the  time  was  seised  of  the  said  manor  in  fee 
ut  in  jure  Domus,  and  that  the  said  Wystow  held  a  building  of  the 
said  Abbott  as  of  the  said  manor  by  certain  service  and  suit  at  the  mill 
of  the  said  Abbott  within  tlie  said  manor,  and  for  non  feasance  of  the 

2*  Ace:  Rogers  v.  Gilinger,  30  Pa.  185,  72  Am.  Dec.  694  (1858);  Patton  v. 
Moore,  16  W.  Va.  428  (ISSO). 

See  BuclJout  v.  Swift,  27  Cal.  433,  87  Am.  Dec.  90  (1865) ;  Triplett  v.  Mays, 
13  Ky.  Law  Rep.  874  (1892). 


302  FIXTURES  (Ch.  5 

suit  he  distrained  the  said  millstone.  To  which  the  plaintiff  says,  the 
said  millstone  was  affixed  to  a  large  piece  of  timber  by  nails  and  strips, 
etc.,  so  as  to  his  claim,  he  could  not  take  it  as  a  distress. 

Brundel.  Your  plea  is  not  good.  Notwithstanding  that  it  was 
affixed  to  a  piece  of  timber  still  he  could  take  them  as  a  distress ; 
but  if  you  wish  to  help  yourself  upon  your  matter  you  ought  to  show 
that  within  the  said  building  you  had  a  horse  mill  which  was  annexed 
to  the  said  building  and  that  the  said  millstone  was  parcel  of  the  mill 
for  which  he  so  made  it.  To  which  the  defendant  said  that  the  stone 
was  severed  from  the  mill,  that  is  to  say,  that  the  mill  [sic]  was  pick- 
ing the  stone  at  the  time  of  the  distraint.  Wherefore,  etc.  And  it 
was  held  that  notwithstanding  that  it  was  severed  he  can  not  distrain 
for  this  remains  parcel  of  the  mill,  for  all  the  time  it  was  lying  on  the 
other  stone,  and  notwithstanding  that  it  was  taken  up  to  be  picked  and 
improved  it  is  still  parcel  of  the  mill ;  as  one  may  distrain  windows  but 
not  doors  altho  they  hang  upon  hooks  and  are  renioveable. 

And  FiTZHERBERT  said  that  altho  they  brought  the  millstone  into 
the  house  to  be  picked  and  so  separated  from  the  hearth  and  floor,  still 
the  lord  could  not  distrain  it  because  it  is  a  matter  for  the  common 
welfare ;  but  if  it  was  another  millstone  laid  there  he  could  distrain  this 
well  enough  and  so  of  the  windows  and  doors,  etc.  Query  as  to  the 
anvil  of  a  smith  for  it  seems  all  one  if  it  be  that  he  is  using  it  altho  it 
may  be  out  of  the  base.^° 


POOLE'S  CASE. 
(Nisi  Prius,  1703.    1  SallJ.  3GS.) 

Tenant  for  years  made  an  under-lease  of  a  house  in  Holborn  to  J.  S., 
who  was  by  trade  a  soap-boiler.  J.  S.,  for  tlie  convenience  of  his  trade, 
put  up  vats,  coppers,  tables,  partitions,  and  paved  the  back-side,  etc. 
And  now  upon  a  fieri  facias  against  J-  S.,  which  issued  on  a  judgment 
in  debt,  the  sheriff  took  up  all  these  things,  and  left  the  house  stripped, 
and  in  a  ruinous  condition ;  so  that  the  first  lessee  was  liable  to  make 
it  good,  and  thereupon  brought  a  special  action  on  the  case  against  the 
sheriff,  and  those  that  brought  the  goods,  for  the  damage  done  to  the 
house.     Et  per  Holt,  C.  J.,  it  was  held — 

1st,  That  during  the  term  the  soap-boiler  might  well  remove  the  vats 
he  set  up  in  relation  to  trade,  and  that  he  might  do  it  by  the  common 
law  (and  not  by  virtue  of  any  special  custom)  in  favor  oi  trade  and  to 
encourage  industry:  But  after  the  term  they  become  a  gift  in  law  to 
him  in  reversion,  and  are  not  removable. 

26Aec.:  Darby  v.  Harris,  1  Q.  B.  S95  (1841);  Turner  v.  Cameron,  L.  R. 
5  Q.  B.  306  (1870) ;  Kassing  v.  Keoliane,  4  111.  App.  460  (1S79).  Contra,  Spen- 
cer V.  Darlington,  74  Pa.  286  (1873). 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  303 

2dly,  That  there  was  a  difference  between  what  the  soap-boiler  did 
to  carry  on  his  trade,  and  what  he  did  to  complete  the  house,  as  hearths 
and  chimney-pieces,  which  he  held  not  removable. 

3dly,  That  the  sheriff  might  take  them  in  execution,  as  well  as  the 
under-lessee  might  remove  them,  and  so  this  was  not  like  tenant  for 
years  without  impeachment  of  waste ;  in  that  case  he  allowed  the  sher- 
iff could  not  cut  down  and  sell,  though  the  tenant  might :  And  tlie  rea- 
son is,  because  in  that  case  the  tenant  hath  only  a  bare  power  without 
an  interest ;  but  here  the  under-lessee  hath  an  interest  as  well  as  a  pow- 
er, as  tenant  for  3'ears  hath  in  standing-corn,  in  which  case  the  sheriff 
can  cut  down  and  sell.-" 


ELWES  V.  MAW. 

(Court  of  King's  Bench,  1802.    3  East,  38.) 

Lord  EllEnborough,  C.  J.,^'  now  delivered  the  opinion  of  the 
Court:  This  was  an  action  upon  the  case  in  the  nature  of  waste  by  a 
landlord,  the  reversioner  in  fee,  against  his  late  tenant  who  had  held 
under  a  term  for  21  years  a  farm  consisting  of  a  messuage,  and  lands, 
outhouses,  and  barns,  etc.,  thereto  belonging,  and  who,  as  the  case  re- 
served stated,  during  the  term  and  about  fifteen  years  before  its  expi- 
ration, erected  at  his  own  expence  a  beasthouse,  carpenter's  shop,  a 
fuel  house,  a  cart  house,  a  pump  house,  and  fold  yard.  The  buildings 
were  of  brick  and  mortar,  and  tiled,  and  the  foundations  of  them  were 
about  a  foot  and  half  deep  in  the  ground.  The  carpenter's  shop  was 
closed  in,  and  the  other  buildings  were  open  to  the  front  and  supported 
by  brick  pillars.  The  fold  yard  wall  was  of  brick  and  mortar,  and  its 
foundation  was  in  the  ground.  The  defendant  previous  to  the  expira- 
tion of  his  lease  pulled  down  the  erections,  dug  up  the  foundations,  and 
carried  away  the  materials ;  leaving  the  premises  in  the  same  state  as 
when  he  entered  upon  them.  The  case  further  stated  that  these  erec- 
tions were  necessary  and  convenient  for  the  occupation  of  the  farm, 
which  could  not  be  well  managed  without  them.  And  the  question  for 
the  opinion  of  the  Court  was.  Whether  the  defendant  had  a  right  to 
take  away  these  erections?  Upon  a  full  consideration  of  all  the  cases 
cited  upon  this  and  the  former  argnment,  which  are  indeed  nearly  all 
that  the  books  afford  materially  relative  to  the  subject,  we  are  all  of 
opinion  that  the  defendant  had  not  a  right  to  take  away  these  erections. 

Questions 'respecting  the  right  to  what  are  ordinarily  called  fixtures, 

2  6  Compare  Peniberton  v.  Kinj?.  2  Dev.  (13  N.  C.)  376  (18.30). 

A.  owned  a  house  in  fee.  He  built  therein  set  pots,  ovens,  and  ranges. 
Held,  these  articles  could  not  be  taken  under  a  fieri  facias  in  a  judgment  ob- 
tained against  A.    Winn  v.  Ingleby,  5  B.  &  Aid.  625  (1822). 

2'  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


304  FIXTURES  (Ch.  5 

principally  arise  between  three  classes  of  persons.  1st.  Between  differ- 
ent descriptions  of  representatives  of  the  same  owner  of  the  inherit- 
ance ;  viz.  between  his  heir  and  executor.  In  this  first  case,  i.  e.,  as  be- 
tween heir  and  executor,  the  rule  obtains  with  the  most  rigour  in  fa- 
vour of  the  inheritance,  and  against  the  right  to  disannex  therefrom, 
and  to  consider  as  a  personal  chattel,  any  thing  which  has  been  affixed 
thereto.  2dly,  Between  the  executors  of  tenant  for  life  or  in  tail,  and 
the  remainder-man  or  reversioner;  in  which  case  the  right  to  fixtures 
is  considered  more  favourably  for  executors  than  in  the  preceding  case 
between  heir  and  executor.  The  3d  case,  and  that  in  which  the  great- 
est latitude  and  indulgence  has  always  been  allowed  in  favour  of  the 
claim  to  having  any  particular  articles  considered  as  personal  chattels 
as  against  the  claim  in  respect  of  freehold  or  inheritance,  is  the  case 
between  landlord  and  tenant. 

But  the  general  rule  on  this  subject  is  that  which  obtains  in  the  first- 
mentioned  case,  i.  e.,  between  heir  and  executor;  and  that  rule  *  *  * 
is  that  where  a  lessee,  having  annexed  any  thing  to  the  freehold  during 
his  term,  afterguards  takes  it  away,  it  is  waste.  But  this  rule  at  a  very 
early  period  had  several  exceptions  attempted  to  be  engrafted  upon  it, 
and  which  were  at  last  effectually  engrafted  upon  it,  in  favour  of  trade 
and  of  those  vessels  and  utensils  which  are  immediately  subservient  to 
the  purposes  of  trade.  *  *  *  Wg  find  Lord  Holt,  in  Poole's  Case, 
Salk.  368,  laying  down,  (in  the  instance  of  a  soap-boiler,  and  under  ten- 
ant, whose  vats,  coppers,  etc.,  fixed  had  been  taken  in  execution,  and 
on  which  account  the  first  lessee  had  brought  an  action  against  the 
sheriff,)  that  during  the  term  the  soap-boiler  might  well  remove  the 
vats  he  set  up  in  relation  to  trade ;  and  that  he  might  do  it  by  tlie  com- 
mon law,  and  not  by  virtue  of  any  special  custom,  in  favour  of  trade, 
and  to  encourage  industry;  but  that  after  the  term  they  became  a  gift 
in  law  to  him  in  reversion,  and  were  not  removable.  He  adds,  that 
there  was  a  difference  between  what  the  soap-boiler  did  to  carry  on  his 
trade,  and  what  he  did  to  complete  his  house,  as  hearths  and  chimney 
pieces,  which  he  held  not  removeable.  The  indulgence  in  favour  of 
the  tenant  for  years  during  the  term  has  been  since  carried  still  fur- 
ther, and  he  has  been  allowed  to  carry  away  matters  of  ornament,  as 
ornamental  marble  chimney  pieces,  pier  glasses,  hangings,  wainscot 
fixed  only  by  screws  and  the  like.  Beck  v.  Rebow,  1  P.  Wms.  94 ;  Ex 
parte  Quincey,  1  Atk.  477;  and  Lawton  v.  Lawton,  3  Atk.  13.  But  no 
adjudged  case  has  yet  gone  the  length  of  establishing  that  buildings 
subservient  to  purposes  of  agriculture,  as  distinguished  from  those  of 
trade,  have  been  removeable  by  an  executor  of  tenant  for  life,  nor  by 
the  tenant  himself  who  built  them  during  his  term.     *     *     * 

In  the  case  in  Buller's  Nisi  Prius,  34,  of  Culling  v.  Tuffnell,  before 
Lord  Ch.  J.  Treby,  at  Nisi  Prius,  he  is  stated  to  have  holden  that  the 
tenant  who  had  erected  a  barn  upon  the  premises,  and  put  it  upon  pat- 


Sec.  2)  ANNEXATION   TO    THE   LAND   OF   ANOTHER  J?0o 

tens  and  blocks  of  timber  lying  upon  the  ground,  but  not  fixed  in  or  to 
the  ground,  might  by  the  custom  of  the  country  take  them  away  at  the 
end  of  his  term.  To  be  sure  he  might,  and  that  without  any  custom ; 
for  the  terms  of  the  statement  exclude  them  from  being  considered  as 
fixtures;  "they  were  not  fixed  in  or  to  the  ground."  *  *  *  As  to 
the  case  of  Penton  v.  Robart,  2  East,  88,  it  was  the  case  of  a  varnish 
house,  with  a  brick  foundation  let  into  the  ground,  of  which  the  wood 
work  had  been  removed  from  another  place,  where  the  defendant  had 
carried  on  his  trade  with  it.  It  was  a  building  for  the  purpose  of  trade ; 
and  the  tenant  was  entitled  to  the  same  indulgence  in  that  case,  which, 
in  the  cases  already  considered,  had  been  allowed  to  other  buildings 
for  the  purposes  of  trade ;  as  furnaces,  vats,  coppers,  engines,  and  the 
like.  And  though  Lord  Kenyon,  after  putting  the  case  upon  the 
ground  of  the  leaning  which  obtains  in  modern  times  in  favour  of  the 
interests  of  trade,  upon  which  ground  it  might  be  properly  supported, 
goes  further,  and  extends  the  indulgence  of  the  law  to  the  erection  of 
green  houses,  and  hot  houses  by  nurserymen,  and  indeed  by  implica- 
tion to  buildings  by  all  other  tenants  of  land ;  there  certainly  exists  no 
decided  case,  and,  I  believe,  no  recognized  opinion  or  practice  on  either 
side  of  Westminster  Hall,  to  warrant  such  an  extension.  The  Nisi 
Prius  case  of  Dean  v.  Allaly  (reported  in  Mr.  W'oodfall's  book,  p.  207, 
and  Mr.  Espinasse's,  2  Vol.  11)  is  a  case  of  the  erection  and  removal 
by  the  tenant  of  two  sheds,  called  Dutch  barns,  which  were,  I  will  as- 
sume, unquestionably  fixtures.  Lord  Kenyon  says,  "the  law  will  make 
the  most  favourable  construction  for  the  tenant,  where  he  has  made 
necessary  and  useful  erections  for  the  benefit  of  his  trade  or  manufac- 
ture, and  which  enable  him  to  carry  it  on  with  more  advantage.  It  has 
been  so  holden  in  the  case  of  cyder  mills,  and  other  cases;  and  I  shall 
not  narrow  the  law,  but  hold  erections  of  this  sort  made  for  the  benefit 
of  the  trade,  or  constructed  as  the  present,  to  be  removable  at  the  end 
of  the  term."  Lord  Kenyon  here  uniformly  mentions  the  benefit  of 
trade,  as  if  it  were  a  building  subservient  to  some  purposes  of  trade ; 
and  never  mentions  agriculture,  for  the  purposes  of  which  it  was 
erected.  He  certainly  seems,  however,  to  have  thought  that  buildings 
erected  by  tenants  for  the  purposes  of  farming,  were,  or  rather  ought 
to  be.  governed  by  the  same  rules  which  had  been  so  long  judicially 
holden  to  apply  in  the  case  of  buildings  for  the  purposes  of  trade. 
But  the  case  of  buildings  for  trade  has  been  always  put  and  recognized 
as  a  known,  allowed  exception  from  the  general  rule,  which  obtains  as 
to  other  buildings;  and  the  circumstance  of  its  being  so  treated 
and  considered  establishes  the  existence  of  the  general  rule  to  which  it 
is  considered  as  an  exception.  To  hold  otherwise,  and  to  extend  the 
rule  in  favour  of  tenants  in  the  latitude  contended  for  by  the  defend- 
ant, would  be,  as  appears  to  me,  to  introduce  a  dangerous  innovation 
into  the  relative  state  of  rights  and  interests  holden  to  subsist  between 
Big.Pess.Prop. — 20 


306  FIXTURES  (Ch.  5 

landlords  and  tenants.  But  its  danger  or  probable  mischief  is  not  so 
properly  a  consideration  for  a  court  of  law,  as  whether  the  adoption  of 
such  a  doctrine  would  be  an  innovation  at  all :  and,  being  of  opinion 
that  it  would  be  so,  and  contrary  to  the  uniform  current  of  legal  au- 
thorities on  the  subject,  we  feel  ourselves,  in  conformity  to,  and  in  suf>- 
port  of  those  authorities,  obliged  to  pronounce  that  the  defendant  had 
no  right  to  take  away  the  erections  stated  and  described  in  this  case. 
Postea  to  the  plaintiff.^* 


WHITEHEAD  v.  BENNETT. 

(Court  of  Chancery,  1S58.     27  L.  J.  N.  S.  Cb.  474.) 

This  suit  was  instituted  for  the  administration  of  the  estate  of  W. 
Barker.  A  portion  of  the  property  consisted  of  certain  plots  of  land 
near  Manchester,  upon  which  there  was  a  building  that  had  been  used 
as  a  lunatic  asylum.  The  receiver  who  had  been  appointed  by  the 
Court,  entered  into  an  agreement,  dated  the  19th  of  September,  1852, 
with  W.  Ireland,  whereby  it  was  agreed  that  a  lease  of  the  "buildings 
and  premises  should  be  granted  to  W.  Ireland  for  the  term  of  twenty- 
one  years,  at  a  rent  of  £42  per  annum,  with  a  covenant  on  the  part 
of  the  said  W.  Ireland  to  repair  the  premises.  Under  this  agreement 
Ireland  took  possession  of  the  premises,  and  converted  the  building 
thereon  into  a  cotton-mill,  and  he  also  erected  on  the  land  a  bleaching- 
house,  a  drying  stove,  a  dye-house,  an  engine-house,  and  a  lime-house, 
and  also  a  building  erected  upon  cross  beams,  resting  upon  two  walls, 
and  forming  a  passage.  A  dispute  aftenvards  arose  as  to  the  terms 
of  the  lease,  and  the  lessee  claimed  a  right  to  remove  the  buildings 
which  he  had  erected,  on  the  ground  that  they  were  trade  fixtures, 
used  for  the  purpose  of  his  business.  An  injunction  was  obtained 
to  restrain  the  removal  of  the  buildings ;  and  upon  a  reference  to 
chambers,  evidence  was  obtained  as  to  the  nature  of  the  buildings,  and 
from  the  report  of  a  gentleman  competent  in  such  matters,  who  had 
been  sent  down  by  the  Court  to  examine  the  premises,  it  appeared 
that  tlie  various  buildings  erected  by  the  lessee  were  made  of  brick, 
with  brick  foundations  let  into  the  soil  to  the  depth  of  from  five  inches 
to  five  feet.  The  question  now  came  on  upon  an  adjournment  from 
chambers,  as  to  the  right  of  the  tenant  to  remove  the  buildings. 

KiNDERSLEY,  V.  C.  My  opinion  is,  that  these  are  not  trade  build- 
ings, removable  at  tlie  pleasure  of  the  tradesman.    It  is  extremely  dif- 

28  A  tenant,  a  market  gardener,  planted  1,200  fruit  trees  and  erected  glass 
houses  for  the  purpose  of  raising  fruit  and  vegetables.  Held,  he  may  remove 
the  glass  houses,  but  not  the  trees.  Mears  v.  Callender,  [1901]  2  Ch.  3SS. 
See  Van  Ness  v.  Pacard,  2  Pet.  137,  7  L.  Ed.  374  (1S29). 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  307 

ficult  to  come  to  a  conclusion  upon  the  authorities  as  to  any  principle 
which  can  be  safely  enunciated.  I  have  carefully  considered  the  sub- 
ject as  to  the  possibility  of  deducing  any  rule  from  the  cases  cited, 
but  have  been  unable  to  do  so.  Still  there  are,  no  doubt,  general  prin- 
ciples upon  which  these  cases  are  founded.  In  the  first  place,  the  ques- 
tion has  arisen  between  the  executor  and  the  heir ;  and,  secondly,  be- 
tween the  tenant  for  life  and  the  remainderman ;  and,  lastly,  between 
the  landlord  and  tenant.  Again,  there  have  been  dififerent  views  taken 
by  the  Court  with  reference  to  agricultural  buildings,  trade  buildings 
and  the  ordinary  fixtures  which  a  tenant  puts  in  for  his  own  con- 
venience. In  this  case  the  most  favourable  instance  arises,  namely, 
the  right  of  removal  as  between  landlord  and  tenant;  and,  moreover, 
the  things  sought  to  be  removed  are  of  the  most  favourable  character, 
as  being  trade  fixtures  in  the  sense  that  they  are  buildings  erected  for 
the  exclusive  purposes  of  trade.  With  respect  to  anything  in  the 
nature  of  machiner}',  engines,  or  plant,  or  things  substantial  and  solid, 
such  as  vats,  utensils,  etc.,  these  are  all  clearly  within  the  right  of 
removal  as  between  landlord  and  tenant.  In  all  these  cases,  the  things 
sought  to  be  removed  might  either  be  taken  away  bodily,  where  they 
are  capable  of  being  set  up  again  elsewhere,  or  if,  by  reason  of  their 
bulk  or  complexity,  it  should  be  necessary  to  take  them  to  pieces,  they 
could  be  put  together  in  the  same  form  in  some  other  place.  There 
is  no  dispute  about  the  right  of  the  tenant  to  remove  such  fixtures 
when  they  retain  the  general  character  of  trade  fixtures.  Take  the 
case,  for  instance,  of  a  large  steam-engine,  which  it  is  impossible  to 
remove  in  its  integral -condition,  yet  the  right  of  removal  will  apply 
to  such  an  article,  notwithstanding  that  you  must  take  it  to  pieces. 
It  certainly  may  be  metaphysically  argued  from  this,  that  a  building 
of  the  most  substantial  and  solid  character,  let  ten  feet  into  the  ground, 
with  cement,  is  capable  of  removal,  brick  by  brick,  and  of  being  put 
together  in  another  place  in  the  same  form;  but  the  common  sense 
of  mankind  would  determine  that  an  engine  is  a  very  different  thing 
from  a  house,  although  every  stone,  brick,  tile  and  chimney-pot  might 
be  removed ;  one,  however,  is  the  case  of  removal  of  materials,  and 
the  other  of  taking  to  pieces  and  restoring  to  their  former  state,  actual 
portions  of  tlie  engine.  It  would  be  impossible  to  admit  the  validity 
of  such  an  argument  without  laying  down  a  rule  never  intended  to 
be  enunciated,  and  which  would  alter  the  broad  distinction  between 
trade  fixtures  and  buildings  used  in  trade.  Suppose  tlie  case  of  a 
building  or  utensil  which,  by  the  rule  of  law,  a  tenant  might  remove 
as  a  trade  fixture,  if  there  is  anything  which  is  a  mere  accessory  or 
adjunct  to  it,  and  has  no  other  existence  or  purpose,  then  if  you  may 
remove  tlie  principal  thing,  you  may  also  remove  the  accessory. 

Among  the  many  cases  upon  this  subject,  there  is  not  one  which 
has  determined  that  even  in  the  most  favourable  circumstances  of 


;{0S  FIXTURES  (Ch.  5 

landlord  and  tenant,  a  tenant  has  a  right  to  remove  any  building  which 
he  has  erected,  merely  because  it  is  used  only  for  the  purpose  of 
trade;  and  if  the  argument  used  in  this  case  is  allowed  to  prevail, 
it  can  only  do  so  in  such  a  manner  as  may  be  followed  up  to  its  legiti- 
mate consequences,  and  it  would  be  laying  down  a  rule  that  whatever 
a  tradesman  erected,  however  substantial,  and  however  firmly  let  into 
the  freehold,  yet  if  the  identity  is  preserved,  the  tenant  might  remove 
it.  Such  a  rule  is  established  nowhere.  Not  only  is  there  no  such  de- 
cision, but  there  is  not  even  a  dictum  that  can  bear  any  such  construc- 
tion. The  strongest  authority  is  the  case  of  Elwes  v.  Maw,  which 
was  a  case  of  agricultural  fixtures,  and  certainly  in  that  case  there 
are  dicta  which  appear  distinct  at  first  sight,  and  if  it  could  be  found 
that  Lord  Ellenborough  ever  laid  down  such  a  rule  of  law  as  that 
which  has  been  contended  for  in  this  case  on  behalf  of  Mr.  Ireland, 
I  should  gladly  have  followed  it,  but  I  can  find  no  such  decision.  It 
is  evident  that  those  dicta  refer  only  to  the  particular  case  in  ques- 
tion. 

Assuming,  then,  that  these  buildings  were  erected  solely  for  the  pur- 
poses of  trade,  has  the  tenant  a  right  to  remove  them  ?  and  are  they 
capable  of  removal  ?  There  is  no  law,  practice  or  authority,  having 
regard  to  the  nature  of  these  buildings,  to  justifv  the  Court  in  say- 
ing that  they  come  within  the  description  of  trade  fixtures  so  as  to 
bring  them  within  the  cases  cited.  If  they  are  to  be  considered,  it 
w-ould  be  laying  down  a  verv  alarming  rule,  not  only  generally,  but 
particularly  with  respect  to  that  district  of  the  north  of  England,  in 
Lancashire  and  Yorkshire,  where  the  most  valuable  structures,  involv- 
ing enormous  expense,  and  constituting  the  whole  value  of  the  land, 
are  built  for  the  sole  purpose  of  trade.  No  doubt  great  favour  has 
been  shewn,  and  should  always  be  shewn,  towards  trade,  and  the 
modern  cases  have  relaxed  the  rigour  of  the  old  authorities  in  this  re- 
spect, but  some  limit  must  be  put  to  this  indulgence,  and  tlie  cases  seem 
to  me  to  have  gone  quite  as  far  as  they  ought  to  go.  The  question, 
then,  turns  upon  the  nature  of  these  particular  buildings.  With  re- 
spect to  that  which  is  erected  upon  the  walls  forming  a  passage,  it 
is  incapable  of  being  removed  in  an  integral  condition,  and  the  same 
observation  applies  to  the  engine-house,  although  it  may  in  some  sense 
be  called  an  accessory  to  the  engine.  But  it  is  not  a  mere  shed ;  on 
the  contrary,  it  is  a  brick  building,  let  into  the  soil.  Take  the  common 
case  of  those  gigantic  buildings  which  are  raised  story  after  story,  fitted 
with  spinning- jennies,  drums,  wheels,  &c.,  which  can  only  be  used  in 
such  a  building.  It  is  clear,  ex  concessis,  that  you  might  remove  the 
machinery,  or  the  engine,  however  large,  which  is  usually  in  the  lower 
portion,  and  which  works  the  whole  machinery;  but  if  the  argument 
as  to  accessories  were  carried  out,  you  might  allow  the  entire  build- 
ing to  be  removed,  and  it  is  impossible  to  see  where  such  a  doctrine 


Sec.  2)  ANNEXATION  TO  THE  LAND  OF  ANOTHER  309 

would  stop.  The  present  case  is  precisely  the  same  on  a  smaller  scale ; 
and  with  respect  to  all  and  each  of  tliese  buildings,  my  opinion  is, 
that  they  cannot  be  brought  within  the  proper  legal  definition  of  trade 
fi.xtures,  removable  by  the  tenant. "'' 


BROWN  V.  RENO  ELECTRIC  LIGHT  &  POWER  CO. 

(Circuit  Court  of  the  United  St<ites,  District  of  Nevada,  1S93.     55  Fed.  229.) 

Hawley,  District  Judge. ^°  This  action  was  brought  to  recover  $5,- 
000  damages,  alleged  to  have  been  sustained  by  plaintiff  by  the  breach 
of  certain  covenants  in  a  lease.  On  May  1,  1887,  the  plaintiff,  being 
the  owner  of  certain  land  bordering  on  the  Truckee  river,  in  Washoe 
county,  contracted  with  one  J.  L.  Stevenson  to  put  a  dam  in  the  river, 
to  construct  a  flume,  ditch,  and  tail  race,  and  to  dig  and  construct  at 
the  end  of  said  ditch  a  "penstock  of  the  dimensions  required  for  a 
48-inch  Left'el  wheel,"  and  to  "put  in  place  in  full  working  order  in 
said  described  penstock  one  Left'el  water  wheel,  48  inches  in  size,  and 
sufficient  to  develop  not  less  than  60  horse  power."  This  work  was. 
in  due  time,  completed  by  Stevenson,  and  paid  for  by  plaintiff.  On 
May  2,  1887,  plaintiff  gave  a  lease  to  Stevenson  of  said  land,  including 
"the  appurtenances  which  comprise  the  water  power,  ditch  flumes, 
dams,  Leffel  turbine  wheel  of  48  inches  diameter,  and  tail-race  ditch 
now  about  to  be  made  and  erected,"  by  said  Stevenson,  for  the  term  of 
five  years,  at  a  fi.xed  monthly  rental.  It  was,  among  other  things,  cov- 
enanted in  said  lease  that  if  Stevenson  at  any  time  during  the  first 
three  years  of  the  lease  should  desire  to  purchase  the  leased  premises 
for  $13,000.  the  plaintiff  would  convey  the  same  to  him,  "together  with 
all  the  appurtenances,  inclusive  of  water-power  ditch,  flumes,  dams, 
wheel,  tail-race  ditch,  and  all  buildings  and  erections  of  what  kind  or 
nature  soever  in  and  upon  the  said  demised  premises,  excepting  such 

-■'  Ace.  as  to  a  baiter's  oven.  Collamore  v.  Gillis,  149  Mass.  578,  22  N. 
E.  46.  5  L.  R.  A.  150,  14  Am.  St.  Rep.  460  (1SS9).  Contra,  Baker  v.  McClurg. 
19S  111.  28,  64  N.  E.  701.  59  L.  R.  A.  131,  92  Am.  St.  Rep.  261  (1902).  See 
Onibou.v  V.  Jones.  19  N.  Y.  2.34  (1859). 

A  tenant  erected  a  small  one-story  bricU  building  for  trade  purposes,  sa.v- 
ing,  inter  alia,  that  he  knew  that  it  would  belong  to  the  landlord  at  the  close 
of  the  lease.  Held,  he  cannot  remove  it.  Linahan  v.  Barr.  41  Conn.  471 
(1874). 

.\  tenant  cut  away  part  of  the  floors  in  a  five-story  building  and  tilled  the 
space  with  a  large  cold-storage  chamber.  Held,  this  is  not  taxable  as  per- 
sonal propertv  belonging  to  the  tenant.  Squire  &  Co.  v.  City  of  Portland,  106 
Me.  234.  76  Atl.  679,  .30  L.  R.  A.  (N.  S.)  576,  20  Ann.  Cas.  003  (1909). 

A  stair  case,  inserted  by  cutting  away  part  of  the  floor,  is  removable  by 
the  tenant.     Seeger  v.  Pettit,  77  Pa.  437,  IS  Am.  Rep.  452  (1S75). 

"■0  Part  of  the  opinion  is  omitted. 


310  FIXTURES  (Ch.  5 

buildings  as  may  be  erected  by  tenants  of  the  lessee  during  the  cur- 
rency of  this  lease."  It  was  furtlier  covenanted  that  said  Stevenson 
would  "keep  all  buildings,  erections,  water  wheels,  flumes,  dams,  ditch- 
es, tail-race  ditches,  etc.,  upon  the  demised  premises  in  good  substan- 
tial repair  during  the  whole  term  of  this  lease,  and  that  at  the  expira- 
tion of  said  term,  *  *  *  will  quit  and  surrender  the  said  premises 
and  all  appurtenances  (repeating  here  the  words  in  italics  above)  in  as 
good  state  and  condition  as  reasonable  use  and  wear  thereof  will  per- 
mit." When  the  lease  was  executed  it  was  understood  by  the  parties 
thereto  that  the  leased  premises  were  to  be  used  in  the  nighttime  for  the 
purpose  of  producing  or  creating  water  power  to  be  used  in  running 
and  operating  an  electric  light  plant  for  the  purpose  of  lighting  lamps 
in  the  town  of  Reno.  The  clause  in  italics  was  not  in  the  original  draft 
of  the  lease,  but  was  inserted  at  the  request  of  Stevenson,  so  as  to  en- 
able him  to  sublet  the  premises  in  the  daytime  for  other  purposes,  and 
to  enable  such  tenants  to  remove  such  buildings  and  erections  as  they 
might  construct  or  put  upon  said  premises  for  their  own  uses.  The 
lease  was  assigned  to  defendant  on  the  20th  day  of  October,  1888,  and 
the  leased  premises  were  never  used  for  any  other  purpose  than  that 
of  operating  an  electric  light  plant.  The  defendant  is  entitled  to  the 
same  rights  and  privileges,  and  is  subject  to  the  same  conditions  and 
liabilities,  as  the  original  lessee. 

Prior  to  the  assignment  of  the  lease  Stevenson  erected  upon  the 
premises  a  substantial  dynamo  house,  boarded  up  at  the  ends,  and  ceil- 
ed on  the  inside  with  dressed  ceiling  lumber.  This  building  stood  upon 
a  solid  stone  wall  foundation  laid  with  mortar,  and  within  the  building 
were  placed  two  dynamos.  A  boiler  house  was  constructed  of  rough 
lumber,  the  sills  being  laid  on  stone  and  blocks,  and  an  engine  and 
boiler  were  placed  therein.  A  shaft  house  or  shed  was  built  mostly  of 
old  lumber  taken  from  old  buildings  that  were  on  the  leased  premises. 
Connecting  the  dynamos  with  the  Leftel  wheel  was  a  line  shaft  29  feet 
long  and  4%  inches  in  diameter,  upon  which  wheels  pulleys,  belts,  etc., 
were  placed  so  as  to  transmit  the  water  power  for  tlie  purpose  of  run- 
ning the  machinery  and  generating  the  electric  light.  This  shaft  rested 
upon  five  trestles,  the  bottom  timbers  of  which  were  solidly  imbedded 
in  the  earth  about  two  feet  deep.  All  of  these  buildings,  with  the  ma- 
chinerj'  therein,  were  removed  by  the  defendant.  The  work  of  tearing 
down  the  buildings  and  displacing  the  machinery  commenced  about  the 
25th  of  April,  1892,  and  continued  daily  until  all  the  buildings  were 
torn  down  and  the  machinery  removed  from  its  connections.  The 
lease  expired  ]\Iay  1st.  There  is  considerable  conflict  in  die  evidence 
as  to  when  the  work  of  tearing  down  the  buildings  was  completed.  I 
think  the  evidence  shows  that  the  buildings  were  torn  down,  and  the 
machinery  loosened  from  its  connections,  and  portions  thereof  removed 
from  the  premises,  prior  to  Uie  expiration  of  the  lease.     The  main 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  311 

shaft  and  one  of  the  driving  wheels  attached  to  it  was  not  taken  out 
until  May  2d  or  3d  and  portions  of  the  materials,  lumber,  etc.,  from 
the  buildings,  and  portions  of  the  machinery  that  had  been  taken  out 
of  the  buildings,  were  not  removed  from  the  premises  until  the  4th  or 
5th  of  Alay. 

The  first,  and  most  important,  question  is  whether  the  defendant  had 
the  right  to  remove  the  buildings  and  machinery  erected,  constructed, 
and  placed  upon  the  leased  premises  by  the  lessee,  as  trade  fix- 
tures.    *     *     * 

That  the  buildings  and  machinery  removed  by  the  defendant  were 
what  are  known  as  "trade  fixtures"  seems  to  me  very  clear.  They 
were  part  of  the  electric  plant,  separate  from  and  independent  of  tlie 
penstock  and  Leffel  wheel,  which  were  placed  upon  the  premises  at  the 
expense  of  the  owner  of  the  land.  The  dam,  ditch,  flume,  penstock, 
Lefifel  wheel,  and  tail  race  were  constructed,  and  put  in  place  under 
the  contract  for  the  purpose  of  creating  a  water  power  sufficient  to 
run  and  operate  an  electric  plant.  Without  that  power  it  is  fair  to  as- 
sume that  neither  Stevenson  nor  the  defendant  would  have  leased  the 
premises.  With  it  they  were  willing  to  rent  the  premises,  and  at  their 
own  expense  they  put  in  such  machinery  and  erected  such  buildings  as 
enabled  them  to  run  and  operate  the  electric  plant,  and  supply  the  town 
of  Reno  with  electric  lights.  It  is  not  reasonable  to  believe,  in  the  ab- 
sence of  any  express  covenant  to  the  contrary,  that  the  lessee  would 
have  incurred  the  expense  of  erecting  the  buildings  and  procuring  the 
necessary  machinery  to  connect  with  die  water  power  furnished  by  the 
lessor,  unless  he  had  the  privilege  of  removing  the  same  during  the 
term  or  at  the  expiration  of  the  lease.  The  right  of  removing  trade 
fi.xtures  should  be  liberally  construed  in  favor  of  the  tenant.  There  is 
no  presumption  that  the  tenant  intended  to  make  the  buildings  and  ma- 
chinery erected  and  put  in  place  by  him  at  his  own  expense  a  permanent 
accession  to  the  freehold.  On  the  other  hand,  if  inferences  and  pre- 
sumptions are  to  be  indulged  in,  it  is  manifest  that  such  was  not  the  in- 
tention of  the  tenant.  As  was  said  by  the  supreme  court  of  New  York 
in  Watts-Campbell  Co.  v.  Yuengling,  51  Hun,  302,  3  N.  Y.  Supp.  869, 
affirmed  in  125  N.  Y.  1,  25  N.  E.  1060,  and  quoted  with  approval  in 
Havens  v.  Electric  Light  Co.,  17  N.  Y.  Supp.  580,  where  it  was  held 
that  machinery  placed  by  an  electric  light  company  in  a  building  erect- 
ed by  it  on  the  leased  lands  does  not  become  part  of  the  realty : 

"It  is  largely  a  question  of  intention  whether  machinery'  placed  in  a 
building  is  to  be  considered  as  attached  to  the  freehold  or  not.  There 
are  numerous  cases  where  the  controversy  has  arisen  between  landlord 
and  tenant,  in  which  the  principle  has  been  laid  down  that  fixtures 
erected  by  a  tenant,  in  a  building  for  the  convenience  of  his  trade  may 
be  removed  by  him  at  any  time  during  his  term ;  and  this  conclusion  is 
arrived  at  upon  the  principle  that  they  were  necessary  for  the  carrying 


312  FIXTURES  (Ch.  5 

out  of  his  trade,  and  that,  as  he  was  not  the  owner  of  the  fee,  there 
was  no  presumption  that  he  intended  to  make  tliem  part  thereof.  So  it 
was  held  as  early  as  the  case  of  Holmes  v.  Tremper,  20  Johns.  29, 
tliat  a  cider  mill  and  press  erected  by  a  tenant  at  his  own  expense  and 
for  his  own  use,  though  fixed  to  the  soil,  are  his  own  property,  and  re- 
movable by  him  at  die  end  of  the  term."     *     *     * 

The  plaintiff  admitted  upon  the  oral  argument  that  defendant  had 
the  right  to  remove  the  engine,  boilers,  and  the  dynamos,  but  denied  the 
right  to  remove  the  buildings  in  which  they  were  placed.  The  buildings 
were  erected  for  the  sole  purpose  of  protecting  the  machinery.  It 
would  seem  upon  sound  reason  that  if  this  portion  of  the  machinery 
could  be  removed  the  right  to  remove  the  dynamo  house  and  the  boiler 
house  ought  not  to  have  been  questioned  unless  there  is  some  express 
covenant  reaching  them,  for,  as  we  have  already  stated,  the  right  to 
claim  the  buildings  as  a  part  of  the  freehold  on  the  ground  that  they 
were  firmly  affixed  to  the  soil  is  not  the  only  question  to  be  considered. 
Regard  is  always  to  be  had  to  the  object,  effect,  and  intent  as  well  as  to 
the  mode  of  annexation.  Seeger  v.  Pettit,  77  Pa.  437,  18  Am.  Rep. 
452.  An  examination  of  the  authorities  will  show  that,  as  regards 
trade  fixtures,  it  is  now  the  well-settled  rule  that  the  tenant  may  take 
away  whatever  he  erects,  at  his  own  expense,  for  the  purpose  of  carry- 
ing on  his  trade  or  business,  whether  it  be  machinery,  or  buildings, 
even  though  affixed  to  the  soil  or  freehold,  provided  it  can  be  done 
without  material  injury  to  the  land.     *     *     * 

Under  this  rule,  and  upon  the  undisputed  facts  of  this  case,  the  re- 
moval of  the  fixtures  was  not  unlawful,  and  plaintiff  is  not  entitled  to 
any  damages  therefor.  It  is  proper  to  add  that  there  was  no  material 
damage  to  the  freehold  by  the  act  of  removal. 

[The  plaintiff  recovered  judgment  for  $425  for  breach  of  the  cove- 
nant to  leave  the  premises  in  good  repair,  subject  to  reasonable  wear.] 


WALL  V.  HINDS. 
(Supreme  Judicial  Court  of  Massachusetts,  1855.    4  Gray,  256,  64  Am.  Dec.  64.) 

[Action  for  breach  of  covenant  against  waste.  The  alleged  waste 
consisted  in  the  removal  by  an  assignee  of  the  lessee  shortly  before  the 
expiration  of  his  term  of  a  cistern,  sinks,  and  water  and  gas  pipes.] 

The  cistern,  water  pipes,  and  sinks  were  put  into  the  house  at  an 
expense  of  about  $500,  by  Wood,  an  assignee  of  the  defendant,  dur- 
ing the  term.  The  cistern  was  of  wood,  lined  with  lead,  and  rested 
upon  the  floor  of  the  attic,  and  was  filled  with  water  by  a  supply  pipe, 
which  passed  from  the  city  aqueduct  into  the  cellar  of  th'e  building, 
and  up  through  the  floors  of  the  other  stories,  to  the  cistern.     The 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  313 

pipes,  which  conducted  the  water  to  sinks  in  various  parts  of  the  build- 
ing, terminated  with  faucets  affLxed  by  metal  tacks  to  boards  nailed 
to  the  walls,  and  were  fastened  by  hooks  driven  into  the  plasterins; 
and  walls,  and  passed  through  holes,  which  were  cut  for  the  purpose 
in  the  flooring  and  partitions,  when  the  pipes  were  put  in,  and  were 
not  filled  up  when  they  were  taken  away.  One  of  the  sinks  was  of 
marble,  and  four  of  wood,  three  of  which  were  fastened  to  the  floors 
by  nails,  and  one  set  into  the  floor  by  cutting  away  the  boards.  Pipes 
carrying  away  the  waste  water  from  the  sinks  passed  down  through 
the  floors.  The  plastering  was  somewhat  rent  by  removing  the  fasten- 
ings of  the  pipes. 

The  gas  pipes  also  were  placed  in  the  house  by  an  assignee  of  the 
defendant  during  the  term.  They  passed  from  the  street  into  the 
cellar,  and  thence  up  through  the  floor  and  branched  into  the  various 
rooms,  passing  along  inside  of  the  partitions,  and  through  holes  cut 
in  the  partitions  for  the  purpose,  and  were  kept  in  place  by  bands  or 
hoops  of  metal  fastened  to  the  walls.  In  a  few  of  the  rooms  the  pipes 
passed  through  ornamental  centre  pieces  of  wood,  attached  to  the  ceil- 
ing, which  were  cut  through  for  their  removal.     *     *     * 

BiGELOW,  J.^'  *  *  *  'j^j^g  j^g^^  point  involves  a  question  of 
more  difficulty  and  importance.  The  plaintiffs  claim  to  recover  on 
the  covenant  in  the  lease,  by  which  the  lessee  stipulates  that  he  will 
not  make  or  suffer  any  waste  upon  the  premises  during  the  term,  and 
to  prove  a  breach  they  rely  mainly  upon  the  removal  therefrom  of  the 
gas  and  water  ]Mpes,  which  were  put  into  the  building  by  tenants 
thereof  holding  the  same  as  assignees  of  the  lessee.  The  defendant, 
on  the  other  hand,  contends  that  these  articles  having  been  placed  on 
the  premises  by  the  tenants,  did  not  belong  to  the  plaintiffs,  and  that 
their  removal  does  not  constitute  waste  for  which  this  action  can  be 
maintained  against  him.  This  raises  the  question,  whether,  under  the 
circumstances  proved  in  this  case,  the  pipes  annexed  to  the  building 
for  the  purpose  of  conducting  water  and  gas  into  the  various  rooms, 
can  be  regarded  as  "tenant's  fixtures,"  which  term,  in  its  strict  legal 
definition,  is  to  be  understood  to  signify  things  which  are  fixed  to  the 
freehold  of  the  demised  premises,  but  which  nevertheless  the  tenant 
is  allowed  to  disannex  and  take  away,  provided  he  seasonably  exert 
his  right  to  do  so.     *     *     * 

Fixtures,  which  a  tenant  is  allowed  to  disannex  and  take  away,  are 
comprehended  within  two  classes,  or  are  of  a  mixed  nature,  falling 
partly  within  and  partaking  of  the  nature  of  both.  These  classes  are, 
first,  those  which  are  put  up  for  ornament  or  the  more  convenient 
use  of  the  premises,  and  are  called  domestic  fixtures ;  second,  those 
which  are  put  up  for  the  purposes  of  trade,  and  are  known  as  trade 

31  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  oinitted. 


314  FIXTURES  (Ch.  5 

fixtures.  Gibbons  on  Fixtures,  22,  32;  Smith,  Landl.  &  Ten.  264; 
Amos  &  Ferard  on  Fixtures,  pt.  1,  c.  2,  §§  1,  3,  4.  In  order  to  deter- 
mine, whether  in  any  particular  case  chattels  annexed  to  the  freehold 
come  within  these  classes,  so  that  the  tenant  has  the  right  to  remove 
them,  several  considerations  are  to  be  regarded.  One  of  the  chief 
of  these  is  the  mode  of  their  annexation  to  the  building;  that  is, 
whether  they  are  annexed  to  the  fabric  of  the  house,  and  the  extent 
to  which  they  are  so  united,  and  whether  they  can  be  taken  down 
and  removed  integre,  salve  et  commode,  without  substantial  injury  to 
the  building  or  to  themselves.  Another  important  consideration  is 
the  intention  with  which  they  were  annexed  by  the  tenant,  and  the  pur- 
poses which  they  were  designed  to  answer ;  that  is,  whether  they  were 
intended  for  a  permanent  and  substantial  improvement  to  the  realty, 
perpetui  usus  causa,  or  as  it  is  sometimes  said,  pour  un  profit  del 
inheritance ;  or  whether  they  were  put  up  and  used  for  a  temporary' 
object,  or  for  the  more  convenient  occupation  and  enjoyment  of  the 
premises  for  the  particular  purpose  for  which  the  tenant  used  them, 
,  so  that  they  were  useful  and  necessary  rather  to  the  comfortable  and 
convenient  occupation  of  the  building  than  to  the  building  itself.  Amos 
&  Ferard  on  Fixtures,  pt.  1,  c.  2,  §  1 ;  Smith,  Landl.  &  Ten.  270,  note; 
Buckland  v.  Butterfield,  2  Brod.  &  Bing.  54;  Hellawell  v.  Eastwood, 
6  Exch.  295. 

The  application  of  these  rules  and  principles  to  the  case  at  bar  is 
decisive  of  the  nature  and  character  of  the  articles  which  were  re- 
moved from  the  demised  premises  by  the  tenants.  They  were  but 
slightly  annexed  to  the  building,  and  were  removed  without  any  sub- 
stantial injury  to  the  building,  and  without  essential  injury  to  them- 
selves. The  premises  were  intended  for  and  demised  as  a  tavern  and 
boarding-house.  The  articles  were  themselves  of  a  mixed  nature, 
and  may  well  be  regarded  as  combining  the  qualities  of  both  domestic 
and  trade  fixtures.  They  were  designed  by  the  tenants  to  be  used  in 
carrying  on  the  business  for  which  the  premises  were  occupied,  and 
they  were  also  adopted  for  the  more  easy  and  comfortable  use  and 
enjoyment  of  the  building.  They  were  useful  and  convenient,  rather 
than  essential  and  permanent  additions  to  the  premises.  At  the  time 
of  the  demise,  the  house  was  supplied  with  water  and  furnished  with 
light  by  other  means.  The  pipes  were  not  necessary  therefore  to  the 
complete  enjoyment  of  the  premises.  They  were  only  added  to  sub- 
serve the  domestic  purposes  to  which  they  were  applied,  and  to  render 
the  premises  more  suitable  for  the  particular  use  to  which  they  were 
appropriated. 

It  would  be  quite  useless  to  multiply  authorities  or  seek  out  analo- 
gies, in  support  of  the  view  we  have  taken  of  this  part  of  the  case. 
We  must  be  governed  in  questions  of  this  nature  very  much  by  the 
circumstances  of  each  case.    But  it  may  not  be  inappropriate  to  refer 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  315 

to  tlie  case  of  Grjines  v.  Boweren,  6  Bing.  437,  in  which  it  was  held 
that  a  tenant  might  remove  a  pump  which  was  attached  to  a  per- 
pendicular plank  resting  on  the  ground  at  one  end  and  at  the  other 
end  fastened  to  the  wall  by  an  iron  pin,  which  had  a  head  at  one  end 
and  a  screw  at  the  other,  and  which  went  entirely  through  the  wall. 
If  this  was  not  a  part  of  the  realty,  it  can  hardly  be  contended  that 
water  pipes,  slightly  affixed  to  the  ceiling,  and  passing  through  holes 
in  the  floors,  are  so  far  fixed,  that  they  cannot  be  removed  by  the  ten- 
ant, but  belong  to  the  owner  of  the  premises.  So  too  in  a  recent  case, 
already  cited  Mr.  Baron  Piatt,  said :  "If  a  landlord  demised  a  house 
with  grates  or  gas  fittings  at  an  entire  rent,  they  would  belong  to  him 
at  the  expiration  of  the  term.  But  if  he  had  let  the  house  unfurnished 
with  these  conveniences,  and  tiie  tenant,  for  the  enjoyment  of  his  oc- 
cupation, fixes  them  in  the  house,  the  tenant,  unless  he  had  contracted 
to  leave  them  behind,  might  undoubtedly  remove  them  during  the 
term."    ElHott  v.  Bishop,  10  Exch.  512. 

Upon  the  facts  proved  in  this  case,  we  are  therefore  of  opinion  that 
the  plaintiffs  fail  to  prove  any  breach  of  the  covenant  against  waste. ^^ 
For  the  unavoidable  injury  resulting  to  the  premises  from  the  removal 
of  the  fixtures,  the  plaintiffs  may  perhaps  have  a  remedy  either  against 
the  defendant  or  those  who  severed  the  fixtures  from  the  building. 
See  Amos  &  Ferard  on  Fixtures  (2d  Amer.  Ed.)  89.  But  it  is  clear 
that  it  cannot  be  enforced  in  this  action.     *     *     * 

[Judgment  for  plaintiffs  on  other  covenants  in  the  lease.] 


LOUGHRAN  v.  ROSS. 

(Court  of  Appeals  of  New  York,  1S71.     43  N.  Y.  792,  6  Am.  Rep.  173.) 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  First  District,  affinning  a  judgment  dismissing  tlie  complaint, 
with  costs. 

Action  for  breach  of  covenant  of  seizin  and  quiet  enjoyment  in  a 
deed  of  two  lots  on  Seventh  avenue  and  Fifty-Fifth  street.  New  York, 
"with  the  corner  house,  and  the  house  on  the  adjoining  lot."  The  deed 
was  made  January  11,  1866,  the  premises  then  being  in  the  occupancy 
of  tenants  under  the  defendant.  Up  to  May  1,  1865,  the  premises  had 
been  under  lease  for  a  term  of  years,  and  the  buildings  on  the  lots 

32  Ace:  McLain  Investment  Co.  v.  Cunningham,  113  Jlo.  App.  519,  87  S. 
W.  605  (1905),  furnace. 

A  tenant  built  a  servant's  room,  gutters,  and  underground  water  pipes,  in- 
tending at  the  time  to  remove  them  at  the  expiration  of  his  term.  Held,  the 
lessor  may  enjoin  their  removal.  Wright  v.  Du  Bignon,  111  Ga.  705,  10  S. 
E.  717,  57  L.  R.  A.  609  (1901). 


:{1G  FIXTURES  (Ch.  5 

had  been  erected  by  the  tenants.  On  the  expiration  of  these  leases, 
and  on  the  1st  of  JMay,  1865,  the  defendant  had  leased  one  of  the  lots 
to  the  former  tenant,  or  to  one  occupying  under  or  by  assignment  from 
the  former  tenant,  for  one  year,  by  parol,  rent  payable  quarterly  in 
advance ;  and  on  the  4th  of  April  had  demised  the  other  lot,  by  written 
lease,  to  the  former  tenant,  for  three  years,  at  a  specified  rent,  payable 
quarterly  in  advance,  with  a  provision  that,  in  case  of  a  sale  of  the 
premises,  the  lease  should,  at  the  option  of  the  purchaser,  be  converted 
into  a  lease  from  month  to  month,  and  the  lessee  covenanted,  at  the  ex- 
piration of  the  time,  to  surrender  the  premises  in  as  good  state  and 
condition  as  reasonable  use  and  wear  would  permit,  damages  by  the 
elements  excepted.  After  the  conveyance  to  the  plaintiff,  and  before 
the  1st  of  May  thereafter,  the  buildings  were  removed  by  the  tenants, 
or  some  one  claiming  under  them,  they  claiming  the  right  to  remove 
them.  The  plaintiff'  taking  the  same  view  of  the  rights  of  the  tenants, 
brought  this  action  to  recover  the  value  of  the  buildings,  and  on  the 
trial  at  the  circuit  in  New  York  City,  was  nonsuited ;  and  the  nonsuit 
being  sustained,  by  the  Supreme  Court  in  banc,  the  plaintiff'  has  appeal- 
ed to  this  court. 

Allem,  J.^^  It  is  not  claimed  by  the  defendant  that  the  tenants  oc- 
cupying the  premises  for  the  terms  ending  on  the  1st  of  May,  1865, 
having  erected  the  buildings  during  their  tenancy,  might  not,  during 
the  continuance  of  their  terms  and  their  occupancy  under  the  first  leas- 
es, have  removed  the  buildings;  and  the  plaintiff  does  not  deny,  that 
after  the  expiration  of  the  terms,  and  the  tenants  had  ceased  to  occupy 
as  tenants,  their  right  to  remove  the  buildings  would  have  been  lost; 
that  a  surrender  of  the  premises  would  have  been  an  abandonment  of 
the  claim  to  the  buildings,  and  they  would  have  become  the  property 
of  the  landlord  as  a  part  of  the  realty.  The  material  question  in  the 
case  is,  as  to  the  eff'ect  of  the  second  letting  and  occupation  untler  it, 
after  the  expiration  of  the  first  leases,  upon  the  rights  of  the  tenants 
and  the  ownership  of  the  buildings.  The  rule  is,  that  whatever  fixtures 
the  tenant  has  a  right  to  remove  must  be  removed  before  his  term  ex- 
pires, except  when  the  time  at  which  the  term  will  end  is  uncertain,  de- 
pending upon  a  contingency,  and  it  may  be  determined  unexpectedly  to 
the  tenant,  in  which  case  he  may  be  entitled  to  a  reasonable  time  for 
removing  fixtures  after  the  expiration  of  the  tenancy.  Ellis  v.  Paige, 
1  Pick.  43 ;  Reynolds  v.  Sbuler,  5  Cow.  (N.  Y.)  323.  The  rule  may^be 
subject  to  the  further  qualification,  that  the  right  to  remove  the  fixtures 
is  not  lost  to  the  tenant  so  long  as  his  possession  as  tenant  continues ; 
and  the  claim  of  tlie  plaintiff  is,  that  this  qualification  includes  and 
saves  the  right  of  a  tenant  continuing  in  possession  under  a  new  lease. 
The  right  of  the  tenant  to  remove  is  a  privilege  conceded  to  him  for 

as  Part  of  the  opinion  is  omitted. 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  317 

reasons  of  public  policy,  and  may  be  waived  by  him,  and  will  be  re- 
earded  as  abandoned  bv  anv  acts  inconsistent  with  a  claim  to  the  build- 
ings  as  distinct  from  the  land,  and  upon  abandonment  of  the  right  by 
the  tenant,  fixtures  erected  by  him  immediately  become  the  property  of 
the  landlord  as  a  part  of  the  land.  A  surrender  of  the  premises,  after 
the  expiration  of  the  lease,  is  such  an  abandonment  as  vests  the  title 
in  the  landlord.  In  reason  and  principle  the  acceptance  of  a  lease  of 
the  premises,  including  the  buildings,  without  any  reservation  of  right, 
or  mention  of  any  claim  to  the  buildings  and  fixtures,  and  occupation 
under  the  new  letting,  are  equivalent  to  a  surrender  of  the  possession 
to  the  landlord  at  the  expiration  of  the  first  term.  The  tenant  is  in 
under  a  new  tenancy,  and  not  under  the  old ;  and  the  rights  which  ex- 
isted under  the  former  tenancy,  and  which  were  not  claimed  or  exer- 
cised, are  abandoned  as  effectually  as  if  the  tenant  had  actually  remov- 
ed from  the  premises,  and  after  an  interval  of  time,  shorter  or  longer, 
had  taken  another  lease  and  returned  to  the  premises.  A  lease  of  lands 
and  premises  carries  with  it  the  buildings  and  fixtures  on  the  premises, 
and  the  tenant,  accepting  a  lease  of  the  premises  without  excepting  the 
buildings,  takes  a  lease  of  the  lands  with  the  buildings  and  fixtures, 
and  acknowledges  the  title  of  the  landlord  to  both,  and  is  estopped  from 
controverting  it:  In  respect  to  the  lot  of  which  there  was  a  written 
lease  for  the  new  term,  the  tenant  expressly  covenanted  to  surrender 
the  premises,  at  the  end  of  the  term,  "in  as  good  state  and  condition  as 
a  reasonable  use  and  wear  thereof  will  permit,  damages  by  the  elements 
excepted ;"  and  this  covenant  relates  to  and  includes  the  buildings  then 
on  the  premises,  and  if  they  are  excluded  from  its  operation  it  can  have 
no  eftect.  It  follows  that  the  tenant  becoming  a  party  to  that  lease, 
and  occupying  under  it,  is  estopped  from  claiming  the  buildings  as  his 
own,  for  he  has  covenanted  to  surrender  them,  as  a  part  of  the  premis- 
es and  included  within  the  general  description,  to  the  landlord  at  the 
end  of  the  term,  in  good  repair.  Such  is  also  the  implied  undertaking 
of  the  tenant  taking  a  new  lease  by  parol.  Elementary  writers  are  very 
well  agreed  that,  when  a  tenant  continues  in  possession  under  a  new 
lease  or  agreement,  his  right  to  remove  fixtures  is  determined,  and  he 
is  in  the  same  situation  as  if  the  landlord,  being  seized  of  the  land  with 
the  fixtures,  had  demised  both  to  him.  Taylor's  L.  and  T.  91 ;  Gibbons' 
Law  of  Fixtures,  42 :  and  Grady's  Law  of  Fixtures,  98.  And  it  would 
seem  that  the  position  is  warranted  by  authority.  \\'hen  the  tenant 
continues  in  possession  after  ejectment  brought  by  the  landlord  under 
an  arrangement  with  him,  and  with  his  assent  to  a  stay  of  execution, 
the  tenant's  right  to  remove  buildings  from  the  premises,  erected  by 
himself  during  his  lease,  is  gone.  Fitzherbert  v.  Shaw,  1  H.  Black.  258. 
The  court  held  that  there  was  an  implied  agreement  that  the  tenant 
should  deliver  up  the  premises  in  the  same  condition  as  they  were  in 
when  the  agreement  was  made.     The  same  was  held  in  Heap  v.  Bar- 


318  FIXTURES  (Ch.  5 

ton,  12  C.  B.  274,  Jervis,  C.  J.,  saying:  "If  the  tenants  meant  to  avail 
themselves  of  their  continuance  in  possession  to  remove  the  fixtures, 
they  should  have  said  so."  The  general  form  of  expressing  the  right 
of  the  tenant  to  remove  fixtures,  is  that  they  must  be  removed  within 
the  term ;  tliat  is,  the  term  during  which  they  were  erected,  and  unless 
the  lessee  uses,  during  the  lease,  the  privilege  to  sever  them  he  cannot 
afterwards  do  it.  Lee  v.  Risdon,  7  Taunt.  188;  Lyde  v.  Russell,  1  B. 
&  Ad.  394.  But  it  may  be  done  so  long  as  the  possession  continues, 
although  the  term  may  have  ended,  if  there  has  been  no  new  agreement. 
Penton  v.  Robart,  2  East,  88.     *     *     * 

The  difficulty  is,  that  the  conceded  right  was  abandoned  and  lost  by 
its  non-exercise  during  the  tenancy  under  which  the  buildings  were 
erected.  The  remedy  of  the  plaintiff  was  against  the  persons  wrong- 
fully removing  the  buildings,  and  not  on  the  defendant's  covenant. 

The  judgment  should  be  affirmed.^* 


KERR  V.  KINGSBURY  et  al. 
(Supreme  Court  of  Michigan,  1S7S.    39  Mich.  150,  3.3  Am.  Rep.  3C2.) 

CooLEY,  J.*°  The  controversy  in  this  case  concerns  certain  build- 
ings which  are  claimed  by  complainant  under  a  real  estate  mortgage 
given  March  13,  1874,  by  defendant  Solomon  C.  Kingsbury  to  their 
testator.  The  defendant  Lyon,  on  the  other  hand,  claims  them  as  ten- 
ant's fixtures  under  a  lease  of  tlie  lands  mortgaged. 

The  facts  appear  to  be  that  tlie  defendant,  S.  O.  Kingsbury,  on  the 
25th  day  of  January,  1871,  being  then  the  owner  of  certain  premises 
situated  on  Calder  and  Almy  streets  in  the  city  of  Grand  Rapids,  leased 

34  Ace. :  Wadman  v.  Burke,  147  Cat.  351,  SI  Pac.  1012,  1  L.  R.  A.  (N.  S.) 
1192,  3  Ann.  Cas.  330  (1905);  Carlin  v.  Ritter,  6S  Md.  478,  13  Atl.  370,  16 
Atl.  301,  6  Am.  St.  Rep.  467  (ISSS) ;  Spencer  v.  Commercial  Co.,  30  Wash. 
520,  71  Pac.  53  (1902). 

To  the  same  effect,  emphasizing  the  fact  that  the  second  lease  varied  in 
its  terms  from  the  first,  Hedderich  v.  Smith,  103  Ind.  203,  2  N.  E.  315,  53 
Am.  Rep.  509  (188.5);  Watriss  v.  First  Banlv  of  Cambridge,  124  Mass.  571, 
26  Am.  Rep.  694  (1S7S) ;  or  that  it  contained  a  stipulation  that  the  lessee 
would  deliver  up  the  premises  in  as  good  condition  as  when  received.  Thresher 
V.  East  London  Water-Works,  2  B.  &  C.  60S  (1S24) ;  Sanitary  District  of 
Chicago  V.  Cook,  169  111.  184,  48  N.  E.  461,  39  L.  R.  A.  369,  61  Am.  St.  Rep. 
161  (1897).    See  Hurd's  Rev.  St.  111.  1913,  c.  SO,  §  33a. 

A.  leased  to  B.,  the  lease  expiring  in  November.  B.  stayed  in  after  that 
date,  pending  negotiations  for  a  new  lease.  A.  regained  possession  by  sum- 
mary proceedings.     Held,  B.  may  maintain  an  action  for  conversion  against 

A.  for  his  subsequent  refusal  to  permit  B.  to  remove  a  building  erected  by 

B.  Lewis  V.  Ocean  Nav.  &  Pier  Co.,  125  N.  Y.  341,  20  N.  E.  301  (1891).  See 
Penton  v.  Robart,  2  East,  SS  (ISOl).  See,  also,  Bernheimer  v.  Adams,  70  App. 
Div.  114,  75  N.  Y.  Supp.  73  (1902) ;    Id.,  175  N.  Y.  472,  67  N.  E.  1080  (1903). 

so  Part  of  the  opinion  is  omitted. 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  319 

the  Calder  street  lots  for  ten  years  from  June  1,  1871,  to  John  S.  Long 
and  Samuel  P.  Bennett,  constituting  the  copartnership  of  Long  &  Ben- 
nett, who  took  possession  and  occupied  the  same  for  the  purposes  of  a 
coal  and  wood  3'ard.  The  lease  contained  a  provision  allowing  the  les- 
sees thirty  days  on  its  termination  for  the  removal  of  the  buildings 
they  might  erect.  June  1,  1872,  a  further  lease  of  a  portion  of  the 
Almy  street  lots  was  made  by  Kingsbury  to  Long  &  Bennett,  to  termi- 
nate at  the  same  time  with  the  other,  and  containing  a  similar  provision 
respecting  the  removal  of  buildings. 

In  September,  1873,  S.  O.  Kingsbury  purchased  of  Long  his  interest 
in  the  copartnership  of  Long  &  Bennett,  and  assumed  his  place  in  the 
business,  which  was  thereafter  carried  on  in  the  name  of  Kingsbury  & 
Bennett.  In  February,  1874,  S.  O.  Kingsbury  conveyed  all  the  lots  on 
the  two  streets  to  Gaius  P.  Kingsbury.  This  conveyance  does  not  se^m 
to  have  been  understood  by  the  parties  as  a  transfer  to  G.  P.  Kings- 
bury of  anything  more  than  the  fee  subject  to  the  leases,  and  the  busi- 
ness of  Kingsbury  and  Bennett  went  on  as  before.  In  March,  1874, 
the  deed  to  G.  P.  Kingsbury  in  the  mean  time  not  having  been  record- 
ed, S.  O.  Kingsbury  gave  to  Henry  A.  Kerr,  whom  the  complainants 
represent,  the  mortgage  under  which  they  claim.  In  January,  1876, 
G.  P.  Kingsbury  gave  to  Kingsbury  &  Bennett  a  new  lease  of  all  the 
lots  for  five  years  and  five -months.  This  would  make  the  lease  termi- 
nate at  the  same  time  as  the  former  leases,  and  upon  the  face  of  the 
transaction  no  reason  appears  for  giving  it,  unless  it  was  to  obtain  for 
the  purposes  of  the  business  the  copartnership  was  engaged  in,  the  lots 
on  Almy  street  which  were  not  covered  by  the  second  lease. 

The  buildings  the  right  to  which  is  in  dispute  in  this  case,  had  all 
been  put  up  as  tenant's  erections  previous  to  the  giving  of  the  Kerr 
mortgage,  and  were  occupied  by  the  copartnership  of  Kingsbury  & 
Bennett  for  the  purposes  of  their  business  at  that  time.  That  firm 
subsequently  became  insolvent  and  made  an  assignment  for  the  benefit 
of  their  creditors  to  the  defendant  Lyon,  who  undertook  to  remove  the 
buildings  as  personalty.  It  is  not  disputed  that,  as  between  landlord 
and  tenant,  the  buildings  would  in  general  have  been  removable,  but  it 
is  insisted  that  under  the  facts  of  this  case  tliey  are  covered  by  the  lien 
of  the  real  estate  mortgage. 

1.  In  brief  the  claim  on  the  part  of  the  complainants  [is]  that  when 
Kingsbury  &  Bennett,  in  January,  1876,  accepted  from  G.  P.  Kingsbury 
a  new  lease,  they  in  contemplation  of  law  surrendered  the  existing 
leases,  and  not  having  asserted  and  exercised  a  right  to  remove  the 
erections  made  previously,  they  thereby  abandoned  them  to  their  land- 
lord, and  could  not  assert  or  transfer  to  any  one  else  the  right  to  re- 
move them  afterwards.    This  is  the  principal  question  in  the  case. 

The  right  of  a  tenant  to  remove  the  erections  made  by  him  in  fur- 
therance of  the  purpose  for  which  the  premises  were  leased,  is  con- 


320  FIXTURES  (Ch.  5 

ceded.  The  principle  which  permits  it  is  one  of  public  policy,  and  has 
its  foundation  in  the  interest  which  society  has  that  every  person  shall 
be  encouraged  to  make  the  most  beneficial  use  of  his  property,  the  cir- 
cumstances will  admit  of.  On  the  other  hand,  the  requirement  that 
the  tenant  shall  remove  during  his  term  whatever  he  proposes  to  claim 
a  right  to  remove  at  all,  is  based  upon  a  corresponding  rule  of  public 
policy,  for  the  protection  of  the  landlord,  and  which  is  that  the  tenant 
shall  not  be  suffered,  after  he  has  surrendered  the  premises,  to  enter 
upon  the  possession  of  the  landlord  or  of  a  succeeding  tenant,  to  re- 
move fixtures  which  he  might  and  ought  to  have  taken  away  before. 
A  regard  for  the  succeeding  interests  is  the  only  substantial  reason  for 
the  rule  which  requires  the  tenant  to  remove  his  fixtures  during  the 
term ;  indeed,  the  law  does  not  in  strictness  require  of  him  that  he 
shall  remove  them  during  the  term,  but  only  before  he  surrenders  pos- 
session, and  during  the  time  that  he  has  a  right  to  regard  himself  as  oc- 
cupying in  the  character  of  tenant.  Penton  v.  Robart,  2  East,  88; 
Weeton  v.  Woodcock,  7  M.  &  W.  14. 

But  why  the  right  should  be  lost  when  the  tenant,  instead  of  sur- 
rendering possession,  takes  a  renewal  of  his  lease,  is  not  very  a|)parent. 
There  is  certainly  no  reason  of  public  policy  to  sustain  such  a  doctrine; 
on  the  contrary,  the  reasons  which  save  to  the  tenant  his  right  to  the 
fixtures  in  the  first  place  are  equally  influential  to  save  to  him  on  a  re- 
newal what  was  unquestionably  his  before.  What  could  possibly  be 
more  absurd  than  a  rule  of  law  which  should  in  eff^ect  say  to  the  ten- 
ant who  is  about  to  obtain  a  renewal :  "If  you  will  be  at  the  expense 
and  trouble,  and  incur  the  loss,  of  removing  your  erections  during  the 
term,  and  of  afterwards  bringing  them  back  again,  they  shall  be  yours ; 
otherwise  you  will  be  deemed  to  abandon  them  to  your  landlord." 

There  are  some  authorities  which  lay  down  this  doctrine.  Merritt 
v.  Judd,  14  Cal.  59,  is  directly  in  point.  That  case  is  decided  in  re- 
liance upon  previous  decisions  which  do  not  appear  to  us  to  warrant 

ji.  *         :tt        * 

The  case  of  Loughran  v.  Ross,  45  N.  Y.  792,  6  Am.  Rep.  173,  is 
in  accord  with  the  case  in  California.  In  that  case  I\Ir.  Justice  Allen 
speaking  for  the  majority  of  the  court  says :  "In  reason  and  principle 
the  acceptance  of  a  lease  of  the  premises,  including  the  buildings,  with- 
out  any  reservation  of  right,  or  mention  of  any  claim  to  the  buildings 
and  fixtures,  and  occupation  under  the  new  letting,  are  equivalent  to 
a  surrender  of  the  possession  to  the  landlord  at  the  expiration  of  the 
first  term.  The  tenant  is  in  under  a  new  tenancy,  and  not  under  lb? 
old;  and  the  rights  which  existed  under  the  former  tenancy,  and 
which  were  not  claimed  or  exercised,  are  abandoned  as  effectually  as 
if  the  tenant  had  actually  removed  from  the  premises,  and  after  an 
interval  of  time,  shorter  or  longer,  had  taken  another  lease  and  re- 
turned to  the  premises."    This  is  perfectly  true  if  the  sec(jnd  lease  in- 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  '  321 

eludes  the  buildings ;  but  unless  it  does  so  in  terms  or  by  necessary 
implication,  it  is  begging  the  whole  question  to  assume  that  the  lease 
included  tlie  buildings  as  a  part  of  the  realty.  In  our  opinion  it  ought 
not  to  be  held  to  include  them  unless  from  the  lease  itself  an  under- 
standing to  that  effect  is  plainly  inferable. 

In  Davis  v.  Moss,  38  Pa.  346,  353,  it  is  said  by  Mr.  Justice  Wood- 
ward, that  "if  a  tenant  remain  in  possession  after  the  expiration  of 
his  term,  and  perform  all  the  conditions  of  the  lease,  it  amounts  to  a 
renewal  of  the  lease  from  year  to  year,  and  I  take  it  he  would  be 
entitled  to  remove  fixtures  during  the  year."  This  in  our  opinion  is 
perfectly  reasonable,  and  it  is  as  applicable  to  other  tenancies  as  it  is 
to  those  from  year  to  year  which  are  implied  from  mere  permissive 
holding  over.     *     *     * 

W'e  think  the  decree  below  was  correct,  and  it  must  be  affirmed  with 
costs. ^^ 


RAY  v.  YOUNG. 

(Supreme  Court  of  Iowa,  1913.     160  Iowa,  613,  142  N.  W.  393,  46  L.  R.  A. 
[N.  S.]  947,  Ann.  Cas.  1915D,  258.) 

[Bill  in  equity  for  an  injunction. 

One  L.  E.  Ray  owned  the  premises  for  life,  and  on  November  1, 
1909,  leased  them  to  Young  for  one  year  with  the  privilege  of  re- 
newal for  five  years.  The  lease  provided  the  lessee  to  have  "the  priv- 
ilege of  adding  to  this  building  and  removing  tlie  same  at  the  expira- 
tion of  the  lease."  Young  went  into  possession  and  erected  an  ad- 
dition.    L.  E.  Ray  died  June  8,   1911.     Young  had  paid  the  rent  in 

3c  Ace.  where  the  second  lease  declared  itself  to  be  an  "extended  and  re- 
newed" lease  of  the  orisinal  date.  Radey  v.  McCurdy,  209  Pa.  306,  5S  Atl. 
.558,  67  L.  R.  A.  359,  103  Am.  St.  Rep.  1009  (1904). 

That  the  acceptance  of  a  second  lease  does  not  destroy  the  tenant's  right 
to  remove  fixtures,  see  Daly  v.  Simonsou.  126  Iowa,  716.  102  N.  W.  780  (1905) ; 
'Hiouuis  V.  J.  W.  Gayle  &  Co..  134  Ky.  330.  120  S.  W.  290,  28  L.  R.  A.  (X.  S.) 
7(i7.  135  Am.  St.  Rep.  412,  20  Ann.  Cas.  766  (1900).  Compare  Unz  v.  Price's 
Adiur.  58  S.  W.  705,  22  ICy.  Law  Rep.  791  (1900). 

"The  right  of  a  tenant  to  remove  trade  fi.xtures  may  doubtless  be  qualified 
liy  the  covenants  in  the  lease.  But  we  are  of  ojunion  that  the  covenant  to 
deliver  up  in  good  order  'all  future  erections  or  additions'  to  or  upon  the 
premises  is  limited,  in  purpose  and  effect,  to  new  buildings  erected  or  old 
Imildings  added  to,  putting  such  erections  and  additions  upon  the  same  foot- 
ing, in  respect  of  the  obligation  to  Iceep  in  repair,  as  the  buildings  upon 
the  premises  at  the  time  of  the  execution  of  the  lease;  and  cannot  be  ex- 
tendetl  so  as  to  deprive  the  tenants  of  the  right  to  remove  trade  fixtures, 
mut-h  less  personal  property,  put  up  by  them  upon  the  premises  during  the 
term."     Holbrook  v.  Chamberlin,  116  Mass.  1.55,  162,  17  Am.  Rep.  146  (1874). 

See  Fox  v.  Lynch,  71  X.  J.  Eq.  537,  64  Atl.  439  (1906);  Brown  v.  Reno 
Electric  Light  Co.,  ante,  p.  309. 

Biq.Peb3,Pbop. — 21 


322  FIXTURES  (Ch.  5 

advance  to  January,  1912.  He  continued  in  possession  through  1911 
with  the  knowledge  and  consent  of  the  plaintiff  and  his  guardian, 
meanwhile  negotiating  for  a  new  lease.  In  January,  1912,  he  began 
to  remove  the  building  erected  by  him  and  the  plaintiff  filed  this  bill 
for  an  injunction  against  such  removal.  The  injunction  was  granted 
and  Young  appealed.] 

Evans,  J.^'  *  *  *  fj^j^g  equity  of  good  conscience  is  not  with 
the  plaintiff  in  this  case.  If  he  is  entitled  to  the  decree  awarded  be- 
low, it  must  be  upon  the  ground  of  absolute  legal  right  unaffected  by 
equitable  considerations.  The  argument  on  behalf  of  the  plaintiff'  is 
that  he  is  not  bound  by  the  terms  of  the  contract  between  the  defend- 
ant and  his  lessor ;  that  the  rights  of  the  defendant  under  his  contract 
terminated  with  the  death  of  such  lessor;  that  the  death  of  such 
lessor  terminated  not  only  the  defendant's  right  of  occupancy  but  his 
right  of  removal  of  the  building;  that  the  right  of  removal  provided 
for  by  tlie  terms  of  the  lease  could  only  be  exercised  during  the  term 
of  the  tenancy;  and  that  at  the  death  of  the  lessor  the  building  passed 
to  tlie  remainderman  as  a  part  of  the  real  estate.  It  is  also  contended 
that  after  the  death  of  the  lessor  the  defendant  entered  into  a  new 
oral  lease  with  the  plaintiff,  and  that  he  became  thereby  estopped  from 
claiming  ownership  of  the  building.  We  will  consider  these  conten- 
tions in  the  order  stated. 

It  must  be  conceded  that  the  terms  of  the  contract  between  the  de- 
fendant and  his  lessor  are  not  binding  as  such  upon  the  plaintiff  as 
remainderman.  Stewart  v.  Matheny,  66  Miss.  21,  5  South.  387,  14 
Am.  St.  Rep.  538;  Jones  v.  Shufflin,  45  W.  Va.  729,  31  S.  E.  975,  72 
Am.  St.  Rep.  848.  This  contract  can  be  considered  only  as  bearing 
upon  the  rights  of  the  defendant  as  they  were  up  to  the  time  of  the 
death  of  his  lessor.  It  is  the  contention  of  the  plaintiff  that  such  con- 
tract cannot  be  considered  for  any  purpose. 

In  view  of  such  contention,  we  may  as  well  inquire  first  whether, 
independent  of  the  provision  of  the  contract  for  the  right  of  removal, 
the  defendant  had  a  right  as  between  him  and  his  lessor  to  remove  the 
building  erected  by  him.  And  this  depends  upon  the  furdier  question 
whether  or  not  the  building  should  be  classified  as  a  trade  fixture. 

Witliout  dispute  the  building  was  built  and  used  for  garage  and 
repair-shop  purposes.     *     *     * 

Beyond  question  the  building  under  consideration  in  this  case  was 
built  by  the  defendant  and  used  by  him  strictly  for  trade  purposes 
within  tlie  meaning  of  the  law  on  that  subject.  Regardless,  tlierefore, 
of  the  particular  provision  in  the  defendant's  contract  with  his  lessor, 
he  had  a  right  to  remove  his  building  as  between  him  and  his  lessor 

S7  Part  of  the  opinion  is  omitted. 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  323 

as  a  "trade  fixture,"  provided,  of  course,  that  he  could  do  so  without 
substantial  injury  to  the  premises. 

Taking  such  right  as  it  then  was  immediately  preceding  the  death 
of  the  lessor,  the  question  is  then  projected  whether  his  right  of  re- 
moval of  his  own  property  from  the  leased  premises  terminated  in- 
stanter  by  the  death  of  his  lessor  or  whether  he  was  entitled  to  a  rea- 
sonable time  to  remove  his  property  from  the  premises.  There  are 
cases  which  hold  to  the  strict  rule  of  forfeiture  against  the  tenant  in 
such  a  case.  Stewart  v.  Matheny,  Jones  v.  Shufflin,  supra.  We  have 
never  followed  such  a  rule  of  forfeiture  in  this  state;  neither  have 
we  had  occasion  to  pass  upon  the  exact  question  now  before  us.  The 
principle  or  theory  upon  which  such  rule  is  said  to  be  based  is  that 
the  fixtures  erected  by  a  tenant  become  a  part  of  the  realty  as  soon 
as  erected,  and  that  there  is  no  right  of  property  therein  to  the  ten- 
ant, his  right  being  in  the  nature  of  a  privilege  or  license  to  sever  the 
same  from  the  realty  and  repossess  himself  thereof,  and  that  a  fail- 
ure to  exercise  such  right  or  privilege  during  the  term  of  the  tenancy 
is  in  legal  effect  a  complete  abandonment  or  "dereliction"  to  the  land- 
lord. This  theory  of  the  nature  of  the  right  of  the  tenant  to  fixtures 
erected  by  him  has  been  repudiated  in  many  jurisdictions,  including 
our  own,  as  will  be  hereinafter  noted.  The  previous  holdings  of  this 
court  in  that  respect  have  been  that  the  tenant  has  a  right  of  property 
in  the  fixtures  so  erected  by  him,  although  he  may  lose  his  right  of 
property  on  the  theory  of  abandonment  by  the  failure  to  make  timely 
removal  thereof.  While  such  right  remains  the  property  is  deemed 
as  the  personal  property  of  the  tenant  as  between  him  and  the  land- 
lord. 

We  think  the  weight  of  authority  and  reason  is  that  the  right  of 
removal  is  not  necessarily  lost  by  the  mere  expiration  of  the  term.  An 
active  duty  devolves  upon  the  tenant  to  exercise  the  right  promptly, 
in  view  of  all  the  circumstances  of  the  case,  and  ordinarily,  he  is  re- 
quired to  exercise  it  before  an  actual  surrender  of  the  possession  of 
the  premises.  But,  as  long  as  he  continues  in  possession,  with  the 
acquiescence  of  the  owner,  his  right  of  removal  continues  accord- 
ingly.    *     *     * 

We  are  disposed  to  follow  the  more  equitable  rule  which  allows 
the  lessee  of  a  tenant  for  life  a  reasonable  time  after  the  death  of 
his  lessor  to  surrender  his  possession  and  remove  his  property.  This 
is  not  only  equitable  as  between  all  the  parties,  but  the  contrary  rule 
tends  greatly  to  the  unnecessary  depreciation  of  the  rental  value  of  a 
life  estate  by  tlie  constant  menace  of  forfeiture. 

II.  Was  the  defendant  guilty  of  undue  delay  in  the  removal  of  his 
property  in  this  case  ?  This  is  largely  a  question  of  fact  under  tlie  evi- 
dence in  this  record.  No  objection  was  ever  made  to  his  continued 
possession.    On  the  contrary,  in  August  negotiations  were  entered  into 


324  FIXTURES  (Ch.  5 

between  the  defendant  and  the  plaintiff's  guardian  looking  to  a  con- 
tinuance of  the  tenancy.  It  is  the  testimony  of  the  plaintiff's  guard- 
ian that  they  did  agree  orally  to  a  one-year  lease  at  $75  rental.  As 
will  be  seen  later,  a  part  of  the  plaintiff's  case  is  based  upon  this  al- 
leged new  lease.  rThe  defendant  denies  that  they  ever  reached  an 
agreement  for  a  new  lease  but  admits  that  negotiations  were  pend- 
ing between  them.  Manifestly  an  immediate  removal  of  the  build- 
ing pending  the  negotiations  for  a  continuance  of  the  tenancy  would 
of  itself  tend  to  render  such  negotiations  futile.  The  negotiations 
of  themselves  manifestly  contemplated  the  maintenance  of  the  status 
quo  while  tliey  were  pending.  Whether,  therefore,  an  agreement  was 
actually  reached,  as  contended  by  appellant,  or  whether  the  negotia- 
tions were  simply  pending,  in  either  case  the  delay  of  removal  was 
in  harmony  therewith  and  was  therefore  necessarily  reasonable.  On 
this  branch  of  the  case,  therefore,  we  must  find  that  the  defendant 
acted  with  reasonable  promptness  in  the  proposed  removal  of  the 
building.     *     *     * 

It  follows  that  the  decree  below  must  be  reversed,  the  plaintiff's 
petition  and  the  writ  of  injunction  dismissed.  The  defendant  will  be 
awarded  a  reasonable  time  after  the  final  disposition  of  this  case  to 
remove  his  building  and  to  put  the  property  of  the  plaintiff  in  proper 
condition.    Reversed.^' 

38  A.,  tenant  for  life,  leased  to  B.  for  three  years.  A.  died  before  the  ex- 
piration of  the  term.  B.  paid  rent  to  X.,  the  reiiiaiiulenniin,  and  continued 
In  for  more  than  two  years  thereafter.  In  ;\n  action  for  the  final  quarter's 
rent  by  X.  a;j;:iinst  B.,  B.  set  up  a  counterclaim  based  upon  the  fact  that 
A.  had  contracted  with  B.  to  purchase  the  inuirovements  (a  stalile  and  two 
shops),  and  that  X.  had  sold  them  to  Y.,  who  had  dispossessed  B.  The  court 
refused  to  allow  the  counterclaim,  saying:  "It  nui.st  be  remarked  that  the 
agreement  does  not  purport  to  bind  Arndt,  the  owner  of  the  remainder  in 
fee,  and  seems  to  have  been  made  under  the  belief,  and  with  the  wish,  that 
the  life  interest  would  last  as  long  as  the  lease,  which  was  but  for  three 
years.  But,  if  the  intention  were  to  bind  him,  the  objection  arises  that  it  is 
not  competent  for  them  to  make  an  agreement  to  affect  the  inheritance.  On  • 
the  falling  in  of  the  particular  estate,  the  remainderman  or  reversioner  is 
entitled  to  all  the  improvements,  whicli  the  law  denominates  fixtures,  with- 
out regard  to  the  manner  they  are  constructed,  the  persons  who  may  have 
erected  them,  or  whether  they  may  contribute  to  enhance  the  value  of  the 
property  or  not.  If  the  tenant  for  life,  or  the  person  with  whom  he  con- 
tracts, wishes  to  avoid  the  consequences,  the  improvements  must  be  removed 
during  the  continuance  of  the  tir.st  estate,  or  the  assent  of  the  remainderman, 
or  reversioner,  must  be  obtained."  White  v.  Arndt,  1  Whart.  (Pa.)  91  (1S.3()). 
See,  also,  Stewart  v.  Jlatheny,  66  Miss.  21,  5  South.  .387,  14  Am.  St.  Rep.  5.3S  " 
(1SS8) ;  Haflick  v.  Stober,  11  Ohio  St.  482  (1860) ;  Jones  v.  Schufflin,  45  W. 
Va.  729,  31  S.  E.  975,  72  Am.  St.  Rep.  84S  (1898). 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  325 

GUTHRIE  et  al.  v.  JONES 
(Supreme  Judicial  Court  of  Massacliusetts,  1871.    108  Mass.  191.) 

Tort  by  Roger  C.  Guthrie  and  Daniel  McLeod,  partners  under  the  firm 
name  of  Guthrie  &  McLeod,  for  the  conversion  of  "one  case  of  draw- 
ers, one  glass  case,  one  oyster  and  trench  counter,  one  other  counter 
known  as  and  called  a  bar,  one  mirror,  and  gas-pipes  and  gas-fixtures." 
Writ  dated  May  28,  1870.  The  answer,  besides  a  general  denial,  al- 
leged "that  the  plaintififs  occupied  a  tenement  of  the  defendant's  as  his 
tenants,  and  while  in  such  occupation  affixed  to  said  tenement,  and  to 
the  realty  of  the  defendant,  certain  fixtures  which  were  not  removed 
by  them  while  they  so  occupied  said  tenement,  and  said  fixtures  became 
the  property  of  the  defendant  by  force  of  law." 

At  the  trial  in  the  superior  court,  before  Pitman,  J.,  it  appeared  that, 
for  several  years  before  March,  1868,  the  plaintiff  [defendant]  owned 
and  let  to  McLeod  a  building  in  Taunton,  which  John  Coyle  occupied 
under  McLeod  as  an  eating  room  and  for  the  sale  of  intoxicating  liq- 
uors ;  "that  Coyle  put  up  partitions  in  the  building,  also  bought,  car- 
ried in,  and  fastened  to  the  walls  by  nails  or  screws,  the  case  of  draw- 
ers, the  glass  case,  and  the  mirror  which  was  about  six  feet  long  and 
two  feet  or  more  wide ;  that  the  oyster  counter  and  bar  were  also 
bought  and  carried  in  by  him,  and  fastened  to  the  floor  by  nails  or 
screws,  as  usually  done  by  tenants ;  that  the  gas-pipes  were  put  in  by 
him,  and  fastened  by  him  to  the  walls  and  ceilings  of  the  building,  and 
the  gas-fixtures,  so  called,  to  the  number  of  about  sixteen,  were  screw- 
ed upon  the  gas-pipes  on  the  ceiling  by  him  in  the  usual  manner;  and 
that  all  these  articles  were  purchased  by  Coyle  to  use  in  his  said  busi- 
ness;  that  while  Coyle  was  in  possession  of  the  premises,  about  the  1st 
of  March,  1868,  he  sold  these  articles,  together  with  a  large  number 
of  other  articles,  to  the  plaintiffs  for  $800,  with  the  knowledge  of  the 
defendant;  and  that  the  plaintiffs  immediately  entered  upon  the  prem- 
ises under  a  written  lease  from  the  defendant  to  McLeod  for  three 
years  from  March  1,  1868,  in  the  usual  form,"  and  carried  on  therein 
the  same  business  which  Coyle  had  (Jpne. 

[During  the  term  Guthrie  and  McLeod  attempted  to  remove  the 
above  mentioned  articles.  Jones  forbade  their  so  doing,  claiming  them 
as  his  own,  and  ordered  the  plaintiffs  to  leave  the  premises,  which  thev 
did.] 

Morton,  J.''*  We  are  of  opinion  that  some  of  the  articles  claimed 
in  the  plaintiff's'  writ  are  personal  chattels,  for  the  conversion  of  which 
an  action  of  tort  may,  upon  the  facts  proved  at  the  trial,  be  maintained. 
The  glass  case,  the  case  of  drawers,  the  mirror  and  the  gas-fixtures, 

38  Part  of  ttie  opinion  is  omitted. 


326  FIXTURES  (Ch.  '5 

though  fastened  to  the  walls,  were  not  annexed  to  the  realty  so  as  to 
become  part  of  it.  They  are  in  their  nature  articles  of  furniture,  and 
the  fact  that  they  were  fastened  to  the  walls,  for  safety  or  convenience, 
does  not  deprive  them  of  their  character  as  personal  chattels  and  make 
them  a  part  of  the  realty.  Winslow  v.  Merchants'  Insurance  Co.,  4 
Mete.  306,  38  Am.  Dec.  368.  The  nature  of  the  articles,  the  circum- 
stances under  which  they  were  placed  in  the  building,  the  mode  of 
their  connection,  and  the  relation  which  they  bear  to  the  use  of  the 
freehold,  are  not  such  as  to  give  them  the  character  of  fixtures  or  ad- 
ditions to  the  real  estate.  For  the  value  of  these,  the  plaintiffs,  having 
shown  title  in  themselves  and  a  conversion  by  the  defendants,  can 
maintain  this  action. 

The  other  articles  claimed  by  tlie  plaintiflfs  may  stand  upon  different 
grounds.  The  report  does  not  fully  state  the  mode  in  which  they  were 
attached  to  the  building,  so  as  to  enable  us  to  determine  whether  they 
were  personal  chattels  or  fixtures.  If,  as  was  claimed  by  both  parties 
at  the  argument,  they  were  trade  fixtures,  it  would  seem  that  this  ac- 
tion of  tort  for  their  conversion  cannot  be  maintained.  Such  an  action 
cannot  be  maintained  except  upon  proof  of  such  facts  as  would  have 
been  necessary  to  maintain  an  action  of  trover  at  common  law.  Robin- 
son V.  Austin,  2  Gray,  564.  In  the  case  at  bar,  the  fixtures  have  not 
been  severed  from  the  building;  they  therefore  remain  a  part  of  the 
realty,  for  which  an  action  of  trover  will  not  lie.  Roffey  v.  Henderson, 
17  Q.  B.  573;  Wilde  v.  Waters,  16  C.  B.  637;  Stockwell  v.  Marks,  17 
Me.  455,  35  Am.  Dec.  266.  The  plaintiffs,  therefore  cannot  recover  for 
trade  fixtures  under  their  declaration,  although  the  defendant  illegally 
refuses  to  permit  them  to  sever  and  remove  such  fixtures.     *     *     * 

New  trial  ordered. ■"" 

io  Ace:  Mackintosh  v.  Trotter,  3  M.  &  W.  1S4  (1S3S).  Contra,  Watts  v. 
Lehman,  107  Pa.  106  (18S4). 

Same  facts  as  Guthrie  v.  Jones,  but  with  an  agreement  between  the  lessor 
and  les.see  that  trade  fixtures  (a  bake  oven)  erected  by  the  lessee  should  re- 
main personal  property.  Held,  the  lessee  may  maintain  trover  against  the  les- 
sor for  the  latter's  refusal  to  permit  the  removal  of  the  oven.  Korbe  v.  Bar- 
bour, 130  JIass.  255  (ISSl). 

A  sale  of  trade  fixtures  held  to  be  within  neither  the  fourth  nor  the  seven- 
teenth section  of  the  statute  of  frauds.  Hallen  v.  Runden,  1  C,  M.  &  B. 
266  (1834). 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  327 


HORN  V.  CLARK  HARDWARE  CO. 

(Supreme  Court  of  Colorado,  1913.     54  Colo.  522,  131  Pac.  405,  45  L.  R.  A. 

[N.  S.]  100.) 

[The  Pewabic  Mines  Company  leased  to  one  Horn  a  certain  build- 
ing for  a  term  of  10  years  to  be  fitted  up  as  an  ore  working  mill.  The 
lease  provided  that  the  lessee  should  have  the  right  upon  the  surrender, 
termination  or  forfeiture  of  the  lease  "to  remove  all  machinery,  furni- 
ture and  fixtures  placed  upon  said  premises"  by  the  lessee.  This  lease 
was  assigned  with  the  consent  of  the  lessor  to  the  Denver  Mining  & 
Reduction  Company.  The  latter  company  fitted  up  the  mill,  installing 
extensive  machinery,  with  boiler  and  engines.  Further  facts  are  stated 
in  the  opinion  of  the  court.] 

Gabbert,  J.*^  *  *  *  Jj^  fitting  up  the  mill,  the  company  pur- 
chased material  from  the  defendant  in  error,  the  Clark  Hardware 
Company,  consisting  of  tools,  brasses,  nails,  and  other  materials  which 
were  used  in  the  construction  and  operation  of  the  mill.  In  July,  1911, 
the  plaintifif  in  error  recovered  a  personal  judgment  against  the  Den- 
ver Mining  &  Reduction  Company.  A  few  days  later  the  sherifif  of 
Gilpin  county,  under  an  execution  issued  on  this  judgment,  levied  upon 
and  took  into  his  possession,  as  the  personal  property  of  the  judgment 
debtor,  the  tables,  engines  and  other  equipment  of  the  mill,  which  was 
a  part  and  parcel  of  it,  as  installed  in  the  building;  and  also  some  tools 
and  supplies,  and  advertised  the  same  for  sale  as  personal  property. 
Prior  to  the  date  fixed  for  the  sale  of  this  property  under  execution, 
the  defendants  in  error,  joining  as  plaintififs,  brought  suit  against  the 
Denver  Mining  &  Reduction  Company,  the  plaintiff  in  error,  and  the 
sheriff'  of  Gilpin  county,  the  purpose  of  which  was  to  foreclose  a  me^ 
chanic's  lien  upon  the  mill,  including  the  structure  and  the  machinery 
and  equipment  therein,  which  embraces  the  property  levied  upon  by 
the  sheriff  under  the  execution  issued  on  the  plaintiff'  in  error's  judg- 
ment, and  to  restrain  the  latter  and  the  sheriff'  from  selling  this  proper- 
ty under  the  execution  by  virtue  of  which  it  had  been  levied  upon. 
A  temporary  injunction  was  issued,  restraining  the  execution  sale. 
The  trial  of  tlie  case  resulted  in  a  judgment,  making  the  temporary'  in- 
junction perpetual,  and  adjudging  the  plaintiff's  entitled  to  liens  upon 
the  property  levied  upon  by  the  sheriff,  the  building  in  which  it  was 
situated,  the  land  upon  which  the  building  stands,  and  decreed  that  all 
this  property  should  be  sold  in  satisfaction  of  the  liens  so  established. 
To  review  this  judgment,  Horn,  the  judgment  creditor,  has  brought  the 
case  here  on  error. 

*i  Tart  of  the  opinion  is  omitted. 


328  FIXTURES  (Ch.  .J 

The  first  point  urged  by  counsel  for  plaintiff  in  error  to  consider,  is, 
that  under  the  present  statute  of  Colorado  a  lien  will  not  lie  against  a 
leasehold  interest  in  real  estate.  Section  4027,  R.  S.  1908,  provides, 
inter  alia,  that  "any  lien  provided  for  by  this  act  *  *  *  sh^ll  ex- 
tend to  any  assignable,  transferable  or  conveyable  interest  of  such  own- 
er, or  reputed  owner,  in  the  land  upon  which  such  building,  structure, 
or  other  improvement  shall  be  erected  or  placed."  The  act  of  1889, 
Session  Laws  of  that  year,  page  247,  provided  that  "except  when  other- 
wise indicated,  any  person  having  an  assignable,  transferable,  or  con- 
veyable interest  or  claim  in  or  to  any  land,  building,  structure  or  other 
property  mentioned  in  this  act,  shall  be  deemed  an  owner."  *  *  * 
We  think  the  leasehold  interest  of  the  Denver  Mining  &  Reduction 
Company  could  be  subjected  to  a  lien  under  our  present  lien  act.  To 
hold  otherwise,  would  be  directly  contrary  to  the  terms  of  this  act. 

The  next  proposition  urged  on  behalf  of  the  plaintiff  in  error  is  that 
the  plant  of  machinery  in  the  mill  was  trade  fixtures,  and  therefore, 
personal  property,  against  which  a  mechanic's  lien  would  not  lie,  and 
hence  subject  to  be  levied  upon  under  the  execution  issued  on  the  judg- 
ment obtained  by  plaintiff'  in  error.  In  support  of  this  proposition,  it 
is  contended  that  the  Denver  Mining  &  Reduction  Company  was  mere- 
ly a  tenant,  and  had  the  right  to  remove  the  machinery  on  the  expira- 
tion or  forfeiture  of  its  lease.  This  question  is  not  really  material  in 
determining  whether  or  not  the  lien  claimed  by  the  plaintiff's  attached 
to  the  machinery.  In  other  words,  what  the  rights  of  the  lessee  may 
be,  with  respect  to  removing  the  machinery,  as  against  the  lessor,  is 
of  no  particular  moment  in  ascertaining  the  rights  of  the  lien  claim- 
ants. The  lessor  and  lessee  might  agree  between  themselves  that  the 
machinery  could  be  removed  by  the  latter  when  the  lease  expired,  or 
was  forfeited,  or  by  reason  of  the  relation  between  them,  it  might  be 
that,  independent  of  any  agreement,  the  machinery  could  be  removed 
by  the  lessee  on  the  happening  of  either  of  these  events,  and  that,  as 
between  them,  the  machinery,  in  determining  their  rights,  would  not 
be  regarded  as  a  fixture  or  part  of  the  realty,  but  their  private  agree- 
ment, or  their  respective  rights  in  the  machinery  by  operation  of  law, 
would  not  change  the  character  of  this  property,  so  far  as  the  rights 
of  third  persons  are  concerned,  who  claimed  a  lien  thereon,  as  realty. 
Mollie  Gibson  C.  M.  &  M.  Co.  v.  McNichols,  51  Colo.  54,  116  Pac. 
1041;  Dobschuetz  v.  Holliday,  82  111.  371;  Hathaway  v.  Davis,  32 
Kan.  693,  5  Pac.  29. 

The  vital  question,  than,  is  whether  or  not,  as  between  the  lien  claim- 
ants and  the  lessee,  the  machinery  in  the  building  was  a  part  of  the 
leasehold  interest  of  the  latter.  In  determining  this  question  the  test 
is  whether  the  lessee  placed  the  machinery  in  the  building  and  attached 
it  either  to  that  structure,  or  the  ground  therein,  in  whole  or  in  part, 
with  the  intention  that  it  should  become  a  part  of  the  plant  intended, 
as  a  whole,  to  constitute  a  mill  or  reduction  works,  the  purpose  of 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  329 

which  was  to  extract  the  values  from  tailings  and  crude  ores.  If  that 
was  the  object,  and  its  use  was  necessary  or  essential  for  the  success- 
ful operation  of  the  mill  for  the  purposes  designed,  then  the  machinery 
so  placed  became  a  part  of  the  leasehold  interest  of  the  lessee.  Alollie 
Gibson  C.  M.  &  M.  Co.  v.  McNichols,  supra;  Cary  Hardware  Co.  v. 
McCarty,  10  Colo.  App.  200,  50  Pac.  744. 

That  such  was  the  purpose  of  the  lessee,  that  the  machinery  was 
necessary,  and  essential  to  accomplish  the  object  for  which  it  was  in- 
stalled, and  that  each  article  was  a  component  part  of  the  whole,  the 
evidence  established  beyond  question.  *  *  *  Had  the  Denver 
Mining  &  Machinery  Company  been  the  owner  of  the  fee  of  mill-site 
No.  39,  and  as  such  owner  had  placed  the  machinery  in  the  building 
in  the  same  manner  and  for  the  same  purpose  it  did,  as  lessee,  it 
would  hardly  be  contended  that  such  machinery  could  be  -levied  upon 
under  execution  as  personal  property,  either  as  affecting  its  rights  or 
the  rights  of  others  having  a  prior  lien  upon  the  building  in  which  it 
was  placed.  In  such  circumstances  the  machinery  would  admittedly  be 
a  fixture.  In  the  case  at  bar  the  situation  and  rights  of  the  parties  are 
no  different  from  what  they  would  be  in  the  supposed  case,  for  the  ob- 
vious reason  that  the  question  of  whether  the  machinery  was  or  was 
not  a  fixture  must  be  determined  by  the  same  rule  in  each  case.  We 
have  determined  tliat  a  leasehold  estate  may  be  the  subject  of  a  lien, 
and  logically,  it  must  follow  that  whatever  is  a  fixture  of  that  estate 
can  be  subjected  to  the  same  lien.  That  such  is  the  purpose  of  the  act 
is  made  clear  by  a  consideration  of  another  portion  of  section  4027, 
supra,  whereby  it  is  provided :  "The  liens  granted  by  this  act  shall  ex- 
tend to  and  cover  so  much  of  the  land  whereon  such  building,  struc- 
ture, or  improvement  shall  be  made  as  shall  be  necessary  for  the  con- 
venient use  and  occupation  of  such  building,  structure,  or  improvement. 
*  *  *  and  shall  attach  to  all  machinery  and  other  fixtures  used  in 
connection  with  any  such  lands,  buildings,  mills,  structures,  or  im- 
provements." Suppose  the  lessee  should  sell  its  leasehold  interest  with- 
out any  reservation ;  the  machinery  with  which  the  mill  is  equipped 
would  pass  to  the  purchaser  without  being  specially  mentioned,  or  if 
it  should  sell  the  mill  with  a  clause  conveying  its  appurtenances  and 
fixtures,  such  machinery  would  have  been  conveyed  to  tlie  vendee ;  or 
suppose  the  Denver  Mining  &  Reduction  Company  had  seen  fit  to  raise 
the  question  that  its  mill  could  not  be  dismantled  by  the  execution  cred- 
itor levying  upon  and  removing  the  machinery  therein  as  personal 
property,  for  the  reason  that  such  machinery  was  a  part  of  its  estate 
in  the  premises,  would  it  not  be  held,  without  question,  that  it  was  not 
personal  property?     *     *     * 

The  judgment  of  the  district  court  is  affirmed. 

Judgment  affirmed. ■*- 

<2  Ace.  as  to  the  right  to  hold  tixtures  under  a  iueohanic"s  lien.  McCarty 
V.  Burnet,  S4  Ind.  23  (1S82) ;    Zabriskie  t.  Greater  America  Exposition  Co!, 


330  FIXTURES  (Ch.  5 

WHITE  ENAMEL  REFRIGERATOR  CO.  v.  KRUSE. 
(Supreme  Court  of  Minnesota,  1913.    121  Minn.  479,  140  N.  W.  114.) 

Philip  E.  Brown,  J.*'  When  the  Radisson  Hotel,  in  Minneapolis, 
was  erected,  its  owner,  the  defendant  Mrs.  Edna  Kruse,  left  a  front 
comer  of  the  building,  especially  suitable  for  a  store,  in  a  rough  state, 
with  plain  plaster  walls,  rough  cement  floors,  no  door  or  window  cas- 
ings, and  no  decorations,  top  flooring,  wall  wainscoting,  or  paneling. 
Thereafter  the  defendant  leased  the  entire  building  to  the  Radisson 
Hotel  Company,  a  corporation  formed  at  her  instance  and  of  which 
she  was  secretary,  to  carry  on  the  business  of  conducting  the  hotel 
for  an  extended  period.  This  company,  with  her  approval,  leased  the 
front  comer  to  the  Radisson  Shop  Company  for  10  years;  the  lease 
providing,  among  other  things,  that  the  storeroom  should  be  used 
during  the  term  by  the  lessee  "for  the  purpose  of  conducting  therein 
a  candy,  flower,  ice  cream,  and  soda  water  business,  and  business  akin 
thereto,  and  for  no  other  business  whatsoever."  The  lessee  covenant- 
ed to  install  the  usual  and  necessary  fixtures,  fountains,  and  installa- 
tion customarily  installed  in  high-class  candy  and  soft  drink  refresh- 
ment parlors ;  "it  being  understood  and  agreed  that  all  fixtures  so  in- 
stalled shall  be  held  as  collateral  security  by  said  lessor  for  the  pay- 
ment of  rents  due,  or  to  become  due,  on  this  lease,  the  same  to  be 
used  and  controlled  by  the  lessee  during  the  term  of  this  lease,  with 
the  right  to  repair  and  exchange  for  other  fixtures  of  equal  value." 
By  the  terms  of  the  lease  the  lessor  agreed  to  plaster  the  room,  to  lay 
a  floor  of  a  certain  kind,  and  to  paint  tlie  side  walls  and  ceiling,  and 
to  install  electric  light  ceiling  fixtures  at  the  outlet  boxes,  which  were 
to  be  the  property  of  the  lessor.  The  lessee  assumed  the.  obligation 
of  installing  and  maintaining  electric  lamps  and  lights  and  reflectors, 
and  also  the  necessary  wiring  for  window  and  wall  illumination.  The 
lessor  agreed  to  install  a  balcony  in  the  rear  of  the  store  to  the  satis- 
faction of  the  lessee  in  both  detail  and  design,  at  a  cost  of  not  more 
than  $600,  the  same,  however,  to  be  considered  the  property  of  the 
lessor,  provided  that,  in  the  event  that  the  lessee  desired  a  more  ex- 
pensive balcony,  it  should  have  the  option  to  accept  the  amount  stated 
and  install  such  balcony  as  it  might  prefer.  The  lessor  agreed  to  bring 
to  the  floor  level  of  the  store  sewer  and  water  pipes ;  the  lessee  agree- 
ing to  make  all  plumbing  and  sewer  connections  at  its  expense. 

The  shop  company  fitted  up  the  room  with  walnut  paneling  and 
finish,  putting  in  a  marble  base,  window  display  ledges,  and  a  "U"- 

67  Neb.  581,  93  N.  W.  958,  G2  L.  R.  A.  .369,  2  Ann.  Cas.  687  (1903).  Com- 
pare Asheville  Woodworking  Co.  v.  Soutlawick,  119  N.  C.  611,  20  N.  K.  253 
(1896). 

■»3  Part  of  the  opinion  is  omitted. 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  331 

shaped  balcony  around  the  rear  of  the  room,  building  it  by  channeling 
the  supporting  joists  into  the  masonry  of  the  building,  and  attaching 
it  to  the  ceiling  by  expandable  bolts.  All  the  exposed  parts  of  the 
balcony  were  covered  with  walnut,  including  the  under  side  of  the  ceil- 
ing, except  above  the  refrigerator  as  hereinafter  mentioned.  The 
lessee  also  laid  a  tiled  floor.  The  plaintiff,  at  the  instance  and  request 
of  the  shop  company,  built  in  the  storeroom  a  florist's  refrigerator, 
made  upon  a  special  order,  16  feet  and  9  inches  wide,  3  feet  and  6 
inches  deep,  and  7  feet  and  3  inches  high,  together  with  a  tiled  floor 
and  drawers  separately  constructed  to  fit  in,  and  tliis  refrigerator  was 
installed  between  two  of  the  supporting  pillars  of  the  building,  which 
projected  into  the  store  space.  Extra  strong  posts  were  used  in  its 
construction,  in  order  "to  help  support  the  balcony  under  which  it 
stood,  against  the  side  of  the  building,"  thus  increasing  the  expense 
of  its  construction,  and  the  underside  of  the  balcony  ceiling  was  omit- 
ted in  the  space  occupied  by  the  top  thereof.  It  was  built  especially 
for  flowers,  and  weighed  from  4,000  to  6,000  pounds.  It  was  designed 
to  match  the  finish  of  the  room  and  the  wall  paneling  and  balcony, 
having  the  appearance  of  being  a  continuation  of  the  wall  paneling. 
The  marble  base  of  the  room  was  continued  around  the  base  of  the 
refrigerator,  inclosing  it  against  the  wall.  Likewise,  the  molding  in 
the  angle  formed  by  the  under  side  of  the  balcony  and  the  wall  of  the 
room,  and  vv^hich  was  4  or  5  inches  each  way  in  size,  ran  along  one 
side  and  the  front  of  the  refrigerator,  inclosing  it  against  the  wall 
of  the  building.  It  was  not  attached  to  the  floor  or  to  the  vertical 
walls  of  the  building,  but  was  connected  with  the  balcony  by  a  mold- 
ing, and  contained  electric  lights,  current  being  supplied  from  the 
lighting  plant  of  the  building,  and  a  sink  connecting  with  the  city 
sewer  was  supplied  to  collect  the  drip.  The  tiled  floor  of  the  room 
abutted  against  its  base,  and  the  room  was  decorated  after  the  re- 
frigerator was  placed  in  position,  but  the  space  behind  it  remained 
undecorated. 

Subsequently  the  plaintiff  duly  filed  a  statement  setting  forth  a 
claim  of  lien  for  the  value  of  the  refrigerator,  and  this  action  for  its 
foreclosure  followed.  The  trial  was  to  the  court,  which  made  findings 
substantially  in  accordance  with  the  facts  stated,  but  in  greater  detail, 
omitting,  however,  the  provisions  of  the  lease  between  the  hotel  and 
shop  companies  and  some  undisputed  facts  which  we  have  recited. 
Judgment  was  ordered  in  favor  of  the  plaintiff  and  against  the  shop 
company,  and  also  for  a  lien  on  the  hotel  property  for  the  value  of  the 
refrigerator.  In  addition  to  the  facts  recited,  the  court  found  that 
the  refrigerator,  its  floor,  etc.,  and  its  installation,  were  reasonably 
worth  $856.56,  but  did  not  find  that  it  was  a  fixture,  refusing,  how- 
ever, to  find,  on  the  defendant's  application,  that  it  was  not  such,  and 
also  to  make  amended  and  additional  findings.     While  the  findings 


332  FIXTURES  (Ch.  5 

are  criticised  by  the  defendant,  none  of  them  are  challerged,  except 
those  relating  to  value,  and  that  the  lease  to  the  shop  company  was 
made  with  Mrs.  Kruse's  approval.  She  appealed  from  the  order  of 
the  court  refusing  to  find  as  aforesaid,  and  from  its  order  denying  her 
a  new  trial. 

1.  The  only  C|uestion  we  find  necessary  to  determine  in  this  case  is 
whether  the  refrigerator  was  an  "improvement"  or  "fixture,"  within 
R.  L.  1905,  §  3505,  providing  that :  "Whoever  contributes  to  the  im- 
provement of  real  estate  by  performing  labor,  or  furnishing  skill,  ma- 
terial, or  machinery,  for  any  of  the  purposes  hereinafter  stated,  wheth- 
er under  a  contract  with  the  owner  of  such  real  estate  or  at  the  in- 
stance of  any  agent,  trustee,  contractor,  or  subcontractor  of  such 
owner,  shall  have  a  lien  upon  said  improvement,  and  upon  the  land  on 
which  it  is  situated  or  to  which  it  may  be  removed,  for  the  price  or 
value  of  such  contribution ;  that  is  to  say,  for  the  erection,  alteration, 
repair,  or  removal  of  any  building,  fi.xtures,  bridge,  wharf,  fence,  or 
other  structure  thereon,"  etc.  In  other  words,  the  question  is  whether 
this  refrigerator  was  a  fixture  in  the  legal  sense  of  that  word,  or  was 
a  mere  so-called  trade  fixture.  Pond  v.  Robinson,  38  Minn.  272, 
276,  7>7  N.  W.  S)9.  If  it  was  the  former,  then  the  trial  court's  decision 
was  right;  otherwise,  not.  We  will  assume  that  Mrs.  Kruse  must 
be  deemed  to  have  consented  to  the  erection  of  the  refrigerator  in  the 
store,  and  also  that  the  fact  that  such  was  done  by  a  lessee  or  sub- 
lessee is  immaterial,  except  as  bearing  upon  the  question  stated. 

What,  then,  is  a  fixture  under  the  statute?  The  nearest  approach  to 
a  satisfactory  definition  of  this  .term  we  find  in  Wolford  v.  Baxter, 
il  Minn.  12,  21  N.  W.  744,  53  Am.  Rep.  1.  The  question  there  was 
between  mortgagor  and  mortgagee,  but  the  discussion  covers  the  con- 
stituent features  of  fixtures  generally ;  and  if  the  refrigerator  here 
involved  was  not  a  fixture  as  between  the  owner  and  the  tenant  it 
was  not  lienable.  Such  is  the  general  rule.  Rockel  on  Mechanics' 
Liens,  14.  Indeed,  what  is  laid  down  in  Wolford  v.  Baxter,  supra, 
has  been  applied  by  this  court  in  determining  whether  machinery  con- 
stituted a  fixture,  within  the  mechanic's  lien  law.  See  Pond  Alacliine 
Tool  Co.  V.  Robinson,  supra. 

We  will  therefore  first  quote  the  pertinent  part  of  the  opinion  in 
the  Wolford  Case,  from  which  the  rule  here  to  be  applied  is  to  be  de- 
duced, for  it  cannot  be  said  that  the  case  categorically  declares  a  rule. 
"It  has  often  been  remarked,"  said  Mr.  Justice  Mitchell  {ii  Minn. 
at  page  17,  21  N.  W.  at  page  744  [53  Am.  Rep.  1]),  "that  the  law  of 
'fixtures'  is  one  of  the  most  uncertain  titles  in  the  entire  body  of 
jurisprudence.  The  lines  between  personal  property  and  fixtures  are 
often  so  close  and  so  nicely  drawn  that  no  precise  and  fixed  rule  can 
be  laid  down  to  control  all  cases.  It  is  difficult,  if  not  impossib'e,  to 
give  a  definition  of  the  term  which  may  be  regarded  of  universal  ap- 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  333 

plication.  Each  case  must  be  more  or  less  dependent  upon  its  own 
jieculiar  facts.  Whether  a  thing  is  a  fixture  or  not  has  been  some- 
times said  to  be  a  question  partly  of  law  and  partly  of  fact.  Almost 
every  court  and  every  text-vi'riter  has  attempted  to  define  the  term. 
Xone  of  these  definitions  are  infallible  or  of  universal  application; 
but  they  are  of  service  in  determining  whether  an  article  is  or  is  not, 
in  a  given  case,  a  fi.xture.  These  definitions  may  be  found  collected 
in  almost  any  law  dictionary  or  text-book  on  the  subject.  We  shall 
neither  quote  them  nor  attempt  to  give  a  definition  of  our  own,  but 
simply  say  that  they  all  agree  that  'fixtures,'  in  the  primary  meaning 
of  the  term  (and  distinguished  from  movable  or  tenants'  fixtures), 
mean  chattels  annexed  to  the  realty,  so  as  to  become  a  part  of  it. 

"While  not  agreeing  as  to  the  necessity  for,  or  the  degree  of  im- 
portance to  be  attached  to,  the  fact  of  actual  physical  annexation,  yet 
the  authorities  generally  unite  in  holding  that,  to  constitute  a  fixture, 
the  thing  must  be  of  an  accessory  character,  and  must  be  in  some  way 
in  actual  or  constructive  union  with  the  principal  subject,  and  no; 
merely  brought  upon  it ;  that  in  determining  whether  the  article  is 
personal  property,  or  has  become  a  part  of  the  realty,  there  should  be 
considered  the  fact  and  character  of  annexation,  the  nature  of  the 
thing  annexed,  the  adaptability  of  the  thing  to  the  use  of  the  land,  the 
intent  of  the  party  in  making  the  annexation,  the  end  sought  by  an- 
nexation, and  the  relation  of  the  party  making  it  to  the  freehold." 
"To  make  it  a  fixture,"  the  opinion  continues  (31  Minn,  on  page  18, 
21  N.  W.  on  page  745  [53  Am.  Rep.  1]),  "it  must  not  merely  be  es- 
sential to  the  business  of  the  structure,  but  must  be  attached  to  it  in 
some  way,  or,  at  least,  it  must  be  mechanically  fitted,  so  as,  in  ordi- 
nary understanding,  to  constitute  a  part  of  the  structure  itself.  It 
must  be  permanently  attached  to,  or  the  component  part  of,  some  erec- 
tion, structure,  or  machine  which  is  attached  to  the  freehold,  and  with- 
out which  the  erection,  structure,  or  machine  would  be  imperfect  or 
incomplete." 

We  have  quoted  thus  lengthily  from  this  case,  because  it  is  a  ruling 
one,  containing  a  well-nigh  complete  commentary,  and  the  part  of  the 
opinion  quoted  furnishes  the  most  workable  rule  that  we  have  been 
able  to  find.  Let  us,  now,  apply  this  rule  to  the  case  before  us,  re- 
membering that  its  major  premise  is  that  each  case  must  be  determined 
upon  its  own  facts.     See,  also,  Elwell  on  Fixtures  (2d  Ed.)  35,  47. 

The  attachment  of  the  refrigerator  might,  perhaps,  be  held  sufficient 
to  satisfy  the  requirement  of  annexation,  but  was  not  of  such  char- 
acter as  of  itself  to  warrant  a  finding  of  a  fixture,  or  to  import  the 
other  essential  elements  thereof ;  for  it  was  but  slightly  attached  to 
the  building,  and  was  readily  removable  with  slight,  if  any,  injury  to 
the  building.  It  appears  that  it  was  in  fact  removed  by  the  lessee's 
assignee  in  bankruptcy;   and  since  it  was  put  in  before  the  room  was 


334  FIXTURES  (Ch.  5 

completed,  and  nothing  in  the  way  of  further  finish  was  done  to  the 
space  behind  it,  or  occupied  by  it,  except  to  extend  the  molding  and  the 
marble  baseboard  around  it,  its  removal  left  this  part  of  the  room  in 
practically  the  same  condition  in  which  it  was  before  it  was  put  in. 
That  a  so-called  fixture  is  removable  with  little  injury  to  the  building 
is  an  important  consideration  in  this  connection.  Northwestern  Mu- 
tual Life  Ins.  Co.  v.  George,  77  Minn.  319,  326,  328,  79  N.  W.  1028, 
1064;    Medicke  v.  Sauer,  61  Minn.  15,  16,  63  N.  W.  110;    Pioneer 

.Savings  &  Loan  Co.  v.  Fuller,  57  Minn.  60,  63,  58  N.  W.  831.  So, 
also,  the  fact  that  the  refrigerator  was  installed  by  a  tenant  tends  to 
the  conclusion  that  it  was  a  trade  fixture.  Shapira  v.  Barney,  30  Minn. 
59,  14  N.  W.  270.  That  it  was  not  removable  without  being  taken  to 
pieces,  and  was  worth  less  when  removed,  are  circumstances  to  be 
considered,  but  are  not  conclusive.  Elwell  on  Fixtures  (2d  Ed.)  151. 
Nor  is  the  fact  that  it  was  built  extra  strong,  so  as  to  strengthen  the 
balcony  under  which  it  stood,  determinative.  This  was  merely  an  in- 
cidental matter,  only  very  slightly  connected  with  the  purpose  of  the 
installation,  which  would  doubtless  have  been  made,  even  if  there  had 
been  no  balcony,  and,  in  any  event,  the  use  of  the  one  was  not  depend- 

■  ent  upon  that  of  the  other. 

The  nature  of  the  thing  annexed  and  its  adaptability  to  the  use  of 
the  realty — which  in  this  case  we  will  consider  to  be  the  storeroom — 
constitute  the  next  element  to  be  considered.  It  cannot  be  questioned 
that  the  refrigerator  was  adapted  to  the  use  of  the  room  as  a  flower 
store,  for  it  was  built  for  use  in  such  business  while  being  conducted 
in  this  room;  but  no  less  certain  it  is  that  this  adaptability  was  of  lim- 
ited scope,  whereas  there  is  nothing  to  show  that  the  room  was  not 
fitted  for  many  purposes  other  than  those  for  which  it  was  leased. 
We  tliink  it  fair  to  assume  that  the  room  was  suited  to  any  of  the  pur- 
poses for  which  one  of  its  size  and  similar  location  might  ordinarily 
be  used.  In  the  matter  of  character  and  adaptability,  therefore,  we 
think  the  refrigerator  partook  of  the  nature  of  a  .mere  trade  fixture. 
"The  intent  of  the  party  in  making  the  annexation  and  the  relation 
of  the  party  making  it  to  the  freehold"  constitute  the  third  test  under 
the  rule  which  we  are  applying,  and  these  elements  may  be  considered 
together.  In  the  tenns  of  the  lease,  the  substance  of  which  we  have 
set  forth  in  the  statement  of  facts,  we  find  no  indication  that  it  was 
the  intent  of  the  parties  that  the  refrigerator  should  be  the  property 
of  the  lessor.  It  was  not  specifically  mentioned  in  the  lease;  but  it 
was  a  proper  installation  for  a  flower  store,  bearing,  we  might  say, 
the  same  relation  thereto  that  the  soda  fountain  bore  to  the  soft  drink 
refreshment  parlor.  It  must,  therefore,  be  classed  with  the  "necessary 
fixtures,  fountains,  and  installation  customarily  installed  in  high-class 
candy  and  soft  drink  refreshment  parlors,"  all  of  which,  under  the 
terms  of  the  lease,  were  clearly  regarded  by  the  parties  as  trade  fix- 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  335 

tures,  as  distinguished  from  the  wall  decorations,  floor  covering,  bal- 
cony, etc.,  which  the  lessor  undertook  to  furnish ;  it  being,  further- 
more, expressly  stipulated  in  the  contract  that  "said  balcony  at  all  times 
is  to  be  considered  as  tlie  property  of  the  lessor,"  thus  indicating  that 
the  installations  to  be  made  by  the  lessee  were  not  so  to  be  considered. 
Moreover,  is  it  reasonable  to  assume  that  the  lessee  intended  to  make 
the  lessor,  or  the  owner  of  the  building,  a  present  of  so  expensive  a 
structure  at  the  end  of  the  term,  even  though  the  same  was  for  a  long 
period,  when  the  parties  so  carefully  stipulated  as  to  whom  the  bal- 
cony, of  lesser  cost,  was  to  belong?  See  Shapira  v.  Barney,  supra. 
We  think  it  was  the  intent  of  the  parties  that  any  such  so-called  fixture 
as  this  refrigerator  should  be  deemed  to  be  a  trade  fixture. 

Finally,  was  the  storeroom  complete  without  the  refrigerator?  We 
might  readily  answer  this  question  in  the  negative,  were  we  to  con- 
sider the  room  as  suitable  only  for  a  flower  store ;  but,  since  we  can- 
not so  conclude,  the  contrary  answer  must  follow.  We  hold  that  this 
refrigerator  was  a  mere  trade  fixture,  and  hence  that  the  hotel  prop- 
erty is  not  lienable  therefor.  See  Shapira  v.  Barney,  supra ;  Pioneer 
Savings  &  Trust  Co.  v.  Fuller,  supra ;  Medicke  v.  Sauer,  supra ; 
Northwestern  Mut.  Life  Ins.  Co.  v.  George,  supra;  Stout  v.  Stoppel, 
30  Minn.  56,  14  N.  W.  268.     *     *     * 

Order  reversed. 


II.  Other  Relations 
WESTGATE  v.  WIXON. 

(Supreme  Judicial  Court  of  Massachusetts,  ISSO.     128  Mass.  304.) 

Tort.  The  declaration  contained  two  counts.  The  first  was  in  the 
nature  of  trover  for  the  conversion  of  a  barn.  The  second  was  for 
breaking  and  entering  the  plaintiff's  close,  removing  a  barn  annexed 
to  the  freehold,  and  converting  it  to  the  defendant's  use.  The  answer 
contained  a  general  denial ;  and  alleged  that  the  barn  was  the  property 
of  John  H.  Abbott,  and  was  duly  attached  by  the  defendant,  a  deputy 
sheriff,  on  a  writ  against  Abbott  in  favor  of  Benjamin  Barker  and 
others.  The  case  was  submitted  to  the  Superior  Court  on  an  agreed 
statement  of  facts,  which,  after  stating  that  the  pleadings  were  made 
a  part  thereof,  proceeded  as  follows : 

On  April  2,  1877,  the  plaintiff  executed  to  John  H.  Abbott,  a  bond 
for  a  deed  of  a  parcel  of  land  in  Fall  River,  the  condition  of  which 
recited  that  the  plaintiff  had  bargained  and  sold  to  Abbott  a  certain 
parcel  of  land  for  the  sum  of  $3,700,  and  that  Abbott  had  agreed  to  pay 
$30  a  month,  on  tlie  first  of  each  month  until  the  whole  sum  with  in- 


336  FIXTURES  (Ch.  5 

terest  was  paid,  and  was  to  pay  taxes  and  insurance,  with  the  privilege 
of  paying  the  principal  sum  at  any  time  and  demanding  a  deed ;  and  on 
breach  of  any  of  the  conditions,  the  obligation  was  to  be  void. 

Abbott  was  in  actual  occupancy  of  the  premises  at  the  time  of  the  al- 
leged tortious  acts  of  the  defendant.  The  defendant  seized  the  building 
as  the  property  of  Abbott,  on  a  writ  in  favor  of  Benjamin  Barker  and 
others  against  Abbott.  No  question  is  made  as  to  the  legality  of  the 
writ  and  service,  or  that  Abbott  was  indebted  to  the  plaintiffs  in  the 
writ.  At  the  time  of  the  attachment,  Abbott  had  defaulted  in  the  obli- 
gations imposed  upon  him  in  the  bond,  for  a  deed,  in  that  he  had  not 
paid  the  taxes  on  the  estate ;  but  no  measures  had  been  taken  by  the 
plaintiff  to  evict  him,  or  to  assume  possession  of  his  estate  in  any 
way.     *     *     * 

When  the  defendant  made  the  attachment,  the  plaintiff  made  a  prop- 
er demand  for  it  [the  barn]  upon  him,  and  the  building  was  moved  off 
the  premises  by  the  defendant  after  this  demand.  The  attachment  was 
made  and  building  moved  on  March  7,  1878. 

On  the  above  facts  and  pleadings,  if  the  plaintiff  could  maintain  the 
action  judgment  was  to  be  entered  for  him  in  the  sum  of  $330  with  in- 
terest from  the  date  of  writ;  otherwise,  judgment  for  the  defendant. 

The  Superior  Court  ordered  judgment  for  the  plaintiff;  and  the  de- 
fendant appealed  to  this  court.''* 

Morton,  J.  Upon  the  facts  of  this  case,  the  Superior  Court  was 
justified  in  finding  that  the  barn,  for  the  removal  of  which  this  suit 
was  brought,  was  a  part  of  the  realty,  and  was  therefore  not  attachable 
as  the  personal  property  of  Abbott. 

As  a  general  rule,  buildings  are  a  part  of  the  realty,  and  belong  to 
the  owner  of  the  land  on  which  they  stand.  Even  if  built  by  a  person 
who  has  no  interest  in  the  land,  they  become  a  part  of  the  realty,  un- 
less there  is  an  agreement  by  the  owner  of  the  land,  either  ex];ress  or 
implied  from  the  relations  of  the  parties,  that  tliey  shall  remain  per- 
sonal property.  Webster  v.  Potter,  105  Mass.  414,  and  cases  above 
cited.  The  facts  of  this  case  do  not  take  it  out  of  this  general  rule. 
There  was  no  express  agreement  by  the  plaintiff'  that  Abbott  might  re- 
move the  barn ;  and  the  relations  of  the  parties  were  not  such  as  that 
the  law  will  imply  such  an  agreement.  Abbott  was  in  the  occupancy 
of  the  land  under  a  bond,  by  which  the  plaintiff  agreed  to  convey  the 
land  to  him  upon  the  performance  of  certain  conditions  stipulated 
therein.  \\'hile  he  thus  occupied,  Abbott  built  the  barn  in  question. 
The  legal  title  to  the  land  was  in  the  plaintiff,  but  Abbott  had  an  equi- 
table interest  in  it,  a  right  to  obtain  a  title  to  the  soil  upon  perform- 
ance of  the  conditions  of  the  bond.  He  was  not  therefore  a  mere 
stranger,  who  erected  a  building  upon  land  of  another  with  the  con- 

**  Tbe  statement  of  facts  is  abridged. 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  337 

sent  of  the  owner,  in  which  case  an  agreement  that  he  could  remove  it 
might  more  easily  be  implied.  Nor  can  he  be  regarded  as  a  tenant  of 
the  plaintiff,  so  that  the  liberal  rules  in  regard  to  fixtures,  which  pre- 
vail between  a  lessor  and  lessee  can  be  applied.  The  essential  features 
of  a  tenancy  upon  which  those  rules  rest  are  wanting;  he  was  not  un- 
der any  liability  to  pay  rent,  and  he  was  not  compelled  to  surrender  the 
estate  at  a  fixed  time,  as  upon  the  expiration  of  the  term ;  but,  upon 
performing  the  conditions  of  the  bond,  all  the  additions  and  improve- 
ments made  by  him  would  enure  to  his  own  benefit.  King  v.  Johnson, 
7  Gray,  239.  The  relations  between  Abbott  and  the  plaintiff  more  near- 
ly resemble  those  existing  between  mortgagor  and  mortgagee,  in  which 
case  any  additions  made  or  fixtures  annexed  to  the  realty  enure  to  the 
benefit  of  the  mortgagee. 

The  barn  in  question  was  a  substantial  structure.  It  is  clear  from 
the  facts  agreed  that  Abbott  built  it,  not  for  any  temporary  purpose, 
but  for  the  permanent  improvement  of  the  land,  which  he  expected  to 
become  his  property  according  to  the  terms  of  the  bond.  When  built, 
it  became  a  part  of  the  realty,  and  enured  to  the  benefit  of  the  plaintiff 
as  additional  security  for  the  performance  of  the  conditions  of  the 
bond.  Abbott  had  no  right  to  remove  it,  and  his  creditors  had  no  right 
to  attach  it  as  his  personal  property.  Milton  v.  Colby,  5  j\Ietc.  78; 
Eastman  v.  Foster,  8  Mete.  19;  Murphy  v.  Marland,  8  Cush.  575. 

The  defendant  contends  that  the  plaintiff  cannot  maintain  his  action 
in  the  present  form,  because  at  the  time  he  removed  the  barn  Abbott 
was  in  the  occupancy  of  tlie  premises. 

To  maintain  an  action  of  tort  in  the  nature  of  trover  or  trespass  de 
bonis  asportatis,  it  is  sufficient  if  the  plaintiff'  proves  a  title  to,  and  the 
right  to  the  immediate  possession  of  the  goods  converted  or  carried 
away.  Woodruff  v.  Halsey,  8  Pick.  333,  19  Am.  Dec.  329;  Aver  v. 
Bartlett,  9  Pick.  156;  Fairbank  v.  Phelps,  22  Pick.  535;  Codnian  v. 
Freeman,  3  Cush.  306.  In  the  case  at  bar,  the  bond  does  not  contain 
any  stipulation  that  Abbott,  the  obligee,  is  to  enter  into  the  present 
possession  of  the  premises,  and  the  facts  agreed  do  not  state  how  he 
came  into  the  occupancy.  But  we  assume,  as  fairly  to  be  inferred, 
that  he  entered  under  the  bond,  by  virtue  of  the  license  implied  from  its 
terms,  and  not  by  virtue  of  any  independent  license  or  title.  This  be- 
ing so,  his  right  to  the  possession  ceased  when  there  was  a  breach  of 
the  condition  of  the  bond,  and  the  plaintiff  had  an  immediate  right  of 
possession.  There  had  been  a  breach  of  the  conditions  before  the  de- 
fendant removed  the  barn.  It  follows  that,  at  the  time  the  defendant 
unlawfully  removed  the  barn,  the  plaintiff  was  the  owner  of  the  land 
and  barn,  with  the  right  of  immediate  possession.  When  tlie  barn 
was  severed  from  the  realt)%  it  ceased  to  be  real  estate  and  became  per- 
sonal. The  plaintiff'  still  remained  the  owner  of  it,  entitled  to  the  im- 
mediate possession,  and  could  maintain  an  action  of  tort  in  tlie  nature 
Big  .Pees.Pbop. — 22 


338  FIXTURES  (Ch.  5 

of  trover,  either  against  the  person  who  unlawfully  severed  it,  or  any 
other  person  who,  after  it  was  severed,  converted  it  to  his  own  use. 
Riley  v.  Boston  Water  Power  Co.,  11  Cush.  11;  Phillips  v.  Bowers,  7 
Gray,  21. 

Judgment  affirmed.*' 


McCULLOUGH  v.  IRVINE'S  EX'RS. 
(Supreme  Court  of  Pennsylvania,   ISoO.     13  Pa.  43S.) 

This  was  a  suit  by  iVIcCullough,  plaintiff  in  error,  against  Irvine's 
executors.  It  was  an  action  on  the  case,  in  the  nature  of  waste  in 
which  the  injury  complained  of  was  cutting  down  and  destroying  the 
timber  growing  upon  a  tract  of  land  of  139  acres,  and  pulling  down 
and  removing  a  two  story  brick  house  and  bank  barn,  the  under  part 
of  which  was  stone,  and  the  upper  part  frame,  which  buildings  had 
been  erected  by  defendant's  testator,  and  removed  by  him  in  his  life 
time. 

The  land  in  question  was  the  property  of  John  Dunbar,  who  died 
prior  to  1830,  and  on  the  30th  November,  1830,  this  land  was  taken 
upon  proceedings  in  partition  in  the  Orphans'  Court,  by  Samuel  Irvine, 
husband  of  Rosanna,  eldest  daughter  of  said  Dunbar,  in  right  of  his 
wife,  at  $3,945.  He  paid  out  one-third  to  the  other  heirs,  the  two- 
tliirds  he  retained  in  right  of  his  wife  being  her  share  of  her  father's 
estate. 

In  1832,  he  erected  on  said  land  a  two  story  brick  house,  worth  $600 ; 
also  a  bank  barn,  wagon  shed,  and  corn  cribs,  worth  $1,000,  according 
to  the  evidence. 

Samuel  Irvine  had  issue  by  his  wife,  two  children.  One  died  in  in- 
fancy ;  Mary,  his  other  child,  died  7th  January,  1833,  aged  3  years,  and 
his  wife  died  4th  April,  1834. 

Samuel  Irvine,  upon  the  death  of  his  wife,  was  tenant  in  fee  of  one 
undivided  third,  and  tenant  by  the  curtesy  of  the  remaining  undivided 
two-thirds.  The  remainder  in  fee  in  three-fourths  of  the  remaining 
two-thirds  (or  half  of  the  whole)  became  vested  in  John  McCullough, 
the  plaintiff,  who  was  married  to  Jane  Dunbar,  after  the  death  of  Mrs. 
Irvine,  and  previous  to  the  removal  of  the  buildings.     The  house  and 

*5Aec. :  Seiberling  v.  Jliller,  207  111.  443,  G9  N.  E.  SOO  (1904);  Dustin 
V.    Crosby,    75    Me.    75    (1SS3) ;     Seatoff    v.    Anderson,    2S    Wis.    212    (1S71). 

A.  and  B.  made  a  contract  of  sale  of  a  mining  property.  B.  took  possession 
and  erected  macliinery  to  prcspect  the  mine  and  see  if  it  was  worth  develop- 
ing. He  then  defaulted  in  his  contract.  Held,  he  may  remove  the  machinery. 
Gasaway  v.  Thomas,  56  Wash.  77,  105  Pac.  16S,  20  Ann.  Cas.  1337  (1909). 
See  Curtis  v.  Leasia,  78  Mich.  480.  44  N.  W.  500  (1889). 

The  principle  of  the  main  case  applies  as  to  annexations  by  the  mort- 
gagor.    Walmsley  v.  Milne,  7  C.  B.  (N.  S.)  115  (1S59). 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHEB  339 

barn  were  thrown  down  and  removed  from  the  land  by  Samuel  Irvine, 
in  May,  1847.    He  removed  them  to  land  of  his  own.     *     *     * 

Coulter,  J.*°  *  *  *  j  ^link  it  may  be  safely  asserted,  that  any 
act  which  does  permanent  injury  to  the  freehold  or  inheritance  is 
waste.  The  main  question  to  be  resolved  in  the  case  on  hand,  is  there- 
fore, whether  the  brick  house,  two  stories  high,  and  the  bank  bam  66 
feet  long  by  33  feet  wide  and  7  feet  of  an  overshot,  with  corn  crib  and 
wagon  shed  erected  by  the  tenant  for  life  during  the  life  of  his  wife 
and  child,  who  were  the  owners  of  the  remainder  in  fee  of  two  thirds, 
did  become  part  of  the  freehold  and  inheritance  or  not.  The  tenant 
for  life,  Irvine,  was  the  owner  of  the  other  third  in  fee;  and  after  the 
death  of  his  wife  and  child  he  threw  down  the  house  and  barn,  and 
hurled  the  materials  away,  because  the  remainder  man  would  not  give 
the  price  he  asked  for  the  whole  inheritance.  This  suit  is  instituted  by 
the  remainder  man  against  the  executors  of  Irvine,  who  held  the  life 
estate  in  two  thirds  of  the  freehold.  The  defendants  alleged  that  not- 
withstanding Irvine  pulled  down  the  house  and  barn  and  its  adjuncts 
and  sold  off  a  large  quantit}'  of  timber,  leaving  but  a  small  portion  of 
woodland,  that  yet  he  is  not  answerable  in  damages,  because  the  land 
at  the  death  of  Irvine,  in  its  denuded  state,  was  worth  as  much  and 
more  tlian  it  was  valued  at,  when  the  life  estate  first  accrued,  and  he 
took  possession.  And  the  court  below  sustained  this  ground,  summing 
up  their  instructions  to  the  jury  in  these  comprehensive  words :  "But 
if  the  inheritance  was  left  as  valuable  by  the  tenant  for  life,  independ- 
ent of  the  consideration  of  his  own  acts  and  conduct  respecting  it,  as 
when  he  entered  upon  it,  and  more  so,  then  we  think  the  plaintiff  is 
not  entitled  to  recover."  I  cannot  assent  to  this  view  of  the  case.  It 
is  attempted  to  be  sustained  by  those  exceptions  to  the  general  rule 
of  permanent  improvements  becoming  part  of  the  freehold,  which  in 
favor  of  trade  permit  fixtures  or  machinery  to  be  severed  from  the  in- 
heritance by  a  tenant.  Agriculture  is  denominated  a  trade,  and  a 
brick  house  and  a  barn  are  alleged  to  be  the  implements  and  instru- 
ments by  which  it  is  carried  on,  and  which  are  essential  to  its  com- 
fortable prosecution.  The  hypothesis  has  a  bold  and  dashing  novelty 
about  it,  and  is  not  without  plausibility.  Hu.sbandry  has  been  consid- 
ered a  more  primitive  and  simple  occupation  than  handy  work  or 
mechanism  and  it  is  by  some  called  a  science.  But  call  it  a  trade ;  still 
its  success  and  its  products  depend  upon  the  showers  of  heaven  and 
the  nutriment  of  the  earth.  A  cider  press  is  an  instrument  by  which 
cider  is  made,  and  like  a  plough  and  a  harrow  or  a  threshing  machine, 
is  an  implement  of  agriculture  and  belongs  to  the  tenant.  But  a  two 
story  brick  house  and  a  large  bank  barn,  are  not  instruments  or  imple- 
ments of  any  trade.     But  they  are  great  conveniences  which  enable 

«8The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


340  FIXTURES  (Ch.  5 

men  of  all  sorts  to  enjoy  the  fruits  of  their  labor  or  trade.  If  you 
make  these  an  exception  the  rule  itself  is  obliterated,  and  nothing  is 
essentially  of  the  realty,  except  the  earth  itself  and  that  which  is  in  its 
bowels. 

The  exceptions  have  been  carried  very  far  by  some  decisions  in  the 
Eastern  States,  particularly  in  Whiting  v.  Brastow,  4  Pick.  (Mass.) 
310;  Holmes  v.  Tremper,  20  Johns.  (N.  Y.)  29,  11  Am.  Dec.  238,  and 
also  in  Van  Ness  v.  Pacard,  2  Pet.  138,  7  L.  Ed.  374.  It  is  however,  in 
somewhat  loose  expressions  of  the  court  in  those  cases,  and  not  from 
the  cases  themselves,  that  the  principle  asserted  by  the  court  below  de- 
rives some  countenance.  The  first,  where  the  dicta  is  the  most  latitudi- 
narian,  was  merely  the  removal  of  a  padlock  and  some  loose  boards, 
about  which  there  never  could  have  been  any  reasonable  doubt.  The 
second  was  the  removal  of  a  cider  press  by  the  tenant,  and  there  no 
reasonable  doubt  of  its  being  an  implement  for  the  manufacture  of 
cider  would  be  entertained.  The  last  case  runs  to  a  little  more  magni- 
tude, for  it  was  removing  a  sort  of  a  house.  But  a  house  erected  for 
the  purpose  of  manufacturing  a  commodity ;  it  was  more  properly,  a 
shop  for  making  oil ;  and  the  decision  goes  expressly  on  the  ground  of 
its  not  being  a  dwelling  house.  But  none  of  these  cases  either  express- 
ly or  by  implication  overrule  or  impeach  the  case  of  Elwes  v.  Maw,  3 
East,  28,  in  which  it  was  held  that  an  agricultural  tenant  could  not  re- 
move during  the  continuance  of  his  lease,  a  beast  house,  carpenter  shop 
and  fuel  house,  etc.,  erected  for  the  use  of  the  farm,  even  tliough  he 
left  the  premises  as  he  found  them.  In  that  case  the  whole  law  on 
that  subject  was  ably  reviewed;  and  although  it  is  an  English  case,  I 
believe  it  to  be  the  law  of  Pennsylvania,  and  for  the  very  same  reason 
that  the  court  below  give  for  a  contrary  opinion. 

In  my  judgment  that  is  a  rule  which  tends  to  promote  the  interests 
of  agriculture,  whilst  its  converse  would  tend  to  retard  and  impede  its 
progress.  We  must  have  many  tenancies  for  life  in  Pennsylvania,  by 
will,  by  deed,  and  by  descent;  and  if  the  tenant  after  having  enjoyed 
the  fruits  of  the  land  during  perhaps  a  long  life,  may,  just  before  his 
death,  strip  it  of  the  fences  he  has  built,  and  the  house  and  barn  he 
has  erected,  because  the  advance  in  the  improvement  and  commerce  of 
the  country  would  leave  the  land  of  as  much  intrinsic  value  as  when  he 
took  possession,  and  convert  it  into  a  solitary  waste  for  the  winds  to 
moan  over;  the  tenant  of  a  new  generation  will  have  to  take  the  land 
as  it  was  a  generation  before,  and  commence  improvements  de  novo. 
This,  I  apprehend,  would  be  a  slovenly  mode  of  promoting  the  inter- 
ests of  agriculture. 

There  is  a  debt  due  to  the  land  in  return  for  its  fruits  and  products, 
and  a  good  tenant  for  life  always  pays  it.  He  manures  it,  fences  it, 
and  builds  a  habitation  on  it,  and  they  become  part  of  the  freehold, 
and  thus  the  interest  of  agriculture  is  promoted.    These  exertions  are 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  341 

the  voluntary  gift  of  the  Hfe  tenant  to  the  inheritance.  He  dedicates 
them  to  the  inheritance  when  he  has  enjoyed  the  fruits  of  his  labor. 
A  good  farmer  creates,  but  does  not  destroy ;  and  I  may  add,  that  this 
rule,  just  in  itself,  has  a  tendency  to  liberalize  the  social  affections  as 
well  as  to  promote  agriculture. 

It  banishes  that  sordid  and  selfish  spirit  which  would  destroy  what 
the  individual  can  no  longer  enjoy. 

All  fixtures  and  erections  which  the  law  allows  a  tenant  for  years 
to  remove,  are  put  up  for  the  avowed  purpose  of  a  temporary  occu- 
pancy. He  pays  a  suitable  compensation  under  contract  for  liberty  to 
erect  them  for  the  uses  of  his  particular  trade  or  calling.  They  are 
designed  for  his  use  and  his  alone.  Not  so  with  the  tenant  for  life 
in  tlie  case  on  hand.  He  was  himself  owner  of  one-third  of  the  inherit- 
ance, his  wife  and  child  were  owners  of  the  reversionarj'  interest  in  the 
other  two-thirds.  Who  then  can  doubt  his  intention  of  making  these 
buildings  with  a  view  of  benefiting  the  inheritance,  for  himself,  for  his 
wife  and  child ;  by  that  intent  and  act  he  dedicated  them  to  the  free- 
hold, and  so  incorporated  them  with  the  inheritance  as  to  foreclose  his 
power  of  recall  after  the  death  of  his  wife  and  child,  to  the  disherison 
of  their  heirs.     *     *     * 

With  regard  to  the  house  and  barn,  they  having  become  part  of  the 
inheritance  by  the  intent  and  act  of  the  defendant's  testator,  the  rule 
of  damages  is  the  same,  to  wit:  How  much  was  the  inheritance  injur- 
ed by  their  destruction?  In  regard  to  both,  however,  it  must  be  ob- 
served that  Irv'ine  was  the  owner  of  one-third  of  the  inheritance. 

To  that  extent  the  defendants  are  protected ;  I  presume  the  claim  is 
only  for  two-thirds :  all  that  can  be  recovered  is  two-thirds  of  the 
amount  of  damages  for  waste  committed  by  Irvine,  in  the  destruction 
of  the  house  and  barn  and  an  undue  proportion  of  timber. 

Judgment  reversed  and  venire  de  novo  awarded.''^ 

*'!  The  lessee  of  a  life  tenant  erected  portable  buildinss  of  one  and  two 
stories  on  brick  foiindntions.  They  were  plastered,  provided  with  chimneys 
and  used  for  sliops  of  various  iNinds,  some  of  them  in  connection  with  an  ad- 
joining hotel  o^Tied  by  the  lessee.  Held,  the  remainderman  may.  after  the 
death  of  the  life  tenant,  enioin  the  lessee  from  removing  these  buildings. 
Cannon  v.  Hare.  1  Tenn.  Ch.  22  (1S72). 

.\  tenant  for  life  of  a  colliery  placed  a  fire  enrfne  there  for  use  In  connec- 
tion therewith.  Held,  his  executors  may  remove  it  as  against  the  remainder- 
man. I.awton  V.  Lawton.  3  Atli.  12  (1743).  Ace:  Ward  v.  EHidley,  57  L.  T. 
(N.  S.)  20  (1887).    See  D'Eyncourt  v.  Gregory,  L.  R.  3  Eq.  382  (1866). 


342  FIXTURES  (Ch.  5 


KING  V.  MORRIS. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1907.     74  N.  J.  Law,  810,  68 
Atl.  162,  14  L.  R.  A.  [N.  S.]  439,  12  Ann.  Cas.  1086.) 

Reed,  J.*'  This  action  was  brought  by  Charles  S.  King,  as  trustee, 
in  bankruptcy  for  Justice  C.  Paschall,  the  bankrupt,  to  recover  dam- 
ages, from  Artemesia  Morris  for  the  taking  of  a  frame  factory  build- 
ing and  the  machinery  and  fixtures  therein,  alleged  to  have  been  the 
property  of  the  said  bankrupt.     *     *     * 

The  subject  of  the  action  was  a  frame  factory  building  situated  upon 
ground  owned  by  the  defendant  in  common  with  others.  This  struc- 
ture, placed  upon  a  concrete  foundation  without  a  cellar,  was  erected 
by  Mr.  Paschall,  the  bankrupt,  some  time  in  1901,  and  the  machinery 
in  question  was  afterwards  placed  by  him  in  it.  Mrs.  Morris,  the  de- 
fendant, is  the  mother-in-law  of  Mr.  Paschall,  and  lives  in  his  fam- 
ily. In  telling  how  he  came  to  place  this  structure  upon  the  land  of 
his  mother-in-law  he  said  that  he  asked  and  received  her  permission 
to  put  the  building  upon  her  ground,  and  that  he  had  never  paid  rent 
for  it.  He  also  said  that  the  understanding  was  that  just  as  soon  as 
the  building  was  finished  it  was  to  be  turned  over  to  Mrs.  Morris. 
He  also  said  she  was  to  have  the  machinery  and  fixtures. 

Mrs.  Morris  was  not  a  witness,  but  her  testimony,  previously  taken 
before  a  referee  in  bankruptcy,  was  introduced  by  the  plaintiff  as  ad- 
missions by  her  as  defendant.  In  her  testimony  she  said  that  Mr. 
Paschall  merely  asked  her  permission  to  erect  a  factory  building  upon 
her  ground,  and  she  told  him,  "Yes ;  that  was  the  best  tiling  he  could 
do."  She  says  he  did  not  agree  to  pay  her  any  rent,  and  she  did  think 
she  was  the  owner  of  the  factory  because  she  was  the  owner  of  the 
land. 

The  trial  judge  charged  the  jury  that  "if  from  the  testimony  you 
believe  that  the  building  and  machinery  were  put  upon  this  land  in 
pursuance  of  an  agreement  between  Mrs.  Morris  and  Mr.  Paschall 
by  which  the  building  and  machinery  were  to  become  her  property, 
your  verdict  should  be  for  the  defendant.  If  you  believe  *  *  * 
that  the  building  and  machinery  were  placed  there  by  Mr.  Paschall  to 
remain  his  own  personal  property,  and  it  was  understood  that  he  should 
have  the  right  to  remove  them,  then  you  would  be  justified  in  finding 
that  they  were  personalty  and  the  property  of  Mr.  Paschall,  and  the 
plaintiff  would  be  entitled  to  a  verdict."  The  jury  found  a  verdict  for 
the  trustee  in  bankruptcy,  the  plaintiff'. 

In  the  third  request  proffered  by  the  counsel  for  the  defendant  the 
court  was  requested  to  charge  that  prima  facie  all  buildings  and  espe- 

-    *8  Part  of  the  opinion  is  omitted. 


Sec.  2)  ANNEXATION   TO    THE   LAND   OF  ANOTHER  343 

cially  dwelling  houses  belonged  to  the  owner  of  the  land  on  which 
they  stand  as  part  of  the  realty,  and  the  burden  of  proof  is  upon  those 
who  claim  that  they  are  personal  property  to  show  that  they  retain  that 
character.     This  request  was  refused. 

The  court,  in  the  body  of  the  charge,  had  given,  as  a  test  to  deter- 
mine the  ownership  of  this  property,  the  following,  namely,  whether 
there  was  an  agreement  when  the  property  was  placed  upon  the  prem- 
ises that  it  should  belong  to  the  former  or  to  the  latter.  This  left  the 
jury,  in  case  it  failed  to  find  any  agreement  whatever  respecting  the 
ownership  of  the  property,  without  legal  direction,  and  the  third  re- 
quest was  designed  to  have  the  jury  informed  that  in  the  absence  of 
any  agreement  the  inference  would  be  that  the  building  belonged  to 
the  owner  of  the  land  upon  which  it  was  standing. 

The  maxim  respecting  the  ownership  of  structures  placed  upon 
the  land  is  quicquid  plantatur  solo,  solo  cedit.  Broom,  Max.  354 
(marg.).  But  the  maxim  that  whatever  is  placed  upon  the  land  be- 
longs to  the  land  is  subject  to  numerous  exceptions.  One  of  the  most 
conspicuous  modifications  of  this  rule  is  exhibited  in  the  instance  of 
fixtures  put  upon  property  by  a  tenant.  Had  Paschall  been  a  tenant 
of  Mrs.  RIorris,  and  as  such  had  placed  the  structure  in  question  upon 
her  ground,  it,  from  its  character  and  use,  would  have  been  removable 
before  or  at  the  end  of  his  term.  Paschall  was  not  a  tenant,  but  it 
conclusively  appears  that  he  entered,  erected  and  maintained  this  fac- 
tor}' by  the  permission  of  Mrs.  Morris.  The  query  is  presented  wheth- 
er, as  a  licensee  of  Mrs.  Morris,  the  presumption  would  arise,  with- 
out proof  of  any  agreement  that  a  right  to  remove  the  factory  ex- 
isted, and  so  the  factory  retained  its  character  of  personalty. 

The  doctrine  that  a  structure,  however  costly,  if  placed  upon  the 
land  of  another  by  permission,  which  permission  may  be  recalled  at 
any  time,  becomes,  in  the  absence  of  specific  agreement,  irrevocably 
attached  to  the  land  upon  which  it  is  placed,  is  manifestly  opposed  to 
the  intention  implied  in  the  very  transaction.  The  inference  springing 
out  of  such  a  license  is  that  the  land  used  is  to  be  lef-t  as  found,  and 
the  property  so  placed  therein  shall  remain  the  property  of  the  user, 
and  be  removable  as  such.     *     *     * 

In  the  present  case,  therefore,  the  fact  which  conclusively  appears, 
namely,  that  the  factory  was  put  upon  the  land  of  the  defendant  by. 
her  permission,  created  a  situation  which  rendered  the  third  request 
entirely  irrelevant.  In  view  of  the  facts  as  they  existed  the  trial  judge 
properly  covered  the  point  in  question  by  charging  the  second  request 
of  the  plaintiff.  He  charged  that  where  there  was  no  other  circum- 
stance, and  merely  an  erection,  with  the  permission  of  the  landowner, 
of  a  factory  building  of  the  character  of  the  one  involved  in  this  suit, 
the  more  reasonable  inference  is  that  the  builder  had  designed  not  to 
part  with  his  property,  and  the  landowner  had  consented  to  that  un- 
derstanding.    *     *     * 


344  FIXTURES  (Ch.  5 

The  judgment  of  the  Supreme  Court  reversing  the  judgment  of  the 
Circuit  Court  should  itself  be  reversed,  and  the  judgment  of  tlie  Cir- 
cuit Court  should  be  affirmed.*' 


SALTER  V.  SAMPLE. 

(Supreme  Court  of  Illinois,  1S74.     71  111.  430.) 

BrbesE,  C.  J.  The  facts  in  this  case  are  substantially  these:  One 
Singleton  purchased  a  lot  in  the  town  of  Waverly,  in  the  county  of 
Morgan,  of  appellant,  on  time,  at  one  hundred  and  fifty  dollars,  the 
agreed  price.  Singleton  took  possession  of  the  lot,  and  erected  on  it 
a  small  frame  house,  on  pillars,  as  a  residence.  In  the  absence  of  the 
vendor,  who  had  contributed  some  money  towards  the  plastering  and 
carpenter  work  of  the  house,  Singleton  sold  the  house  to  one  Ranz, 
about  the  time  the  purchase  money  became  due,  and  Ranz  sold  it  to 
one  Dennis.  Dennis  and  Ranz  removed  the  house  to  a  lot  belonging 
to  Dennis,  placing  it  on  brick  pillars  sunk  in  the  ground,  with  the  in- 
tention of  making  a  residence  of  it,  for  the  purpose  of  sale.  A  pur- 
chaser was  found  in  appellee,  Sample,  who  paid  them  six  hundred  dol- 
lars and  over  for  the  house  and  lot,  and,  to  fit  it  for  a  dwelling,  built 
an  addition  to  it  for  a  kitchen,  attached  to  the  main  building  by  rest- 
ing the  frame  on  pieces  of  scantling,  2x4,  nailed  to  the  corner  posts 
of  the  main  building. 

The  purchase  money  from  Singleton  for  the  lot  was  not  then  due, 
nor  has  it  ever  been  paid  or  demanded,  and  no  deed  made  b)^  appellant. 

On  appellant's  return  home,  finding  the  lot  he  had  contracted  to  sell 
Singleton  vacant,  the  house  having  been  removed,  and  tracing  it  to 
the  possession  of  appellee,  he  demanded  a  return  of  it,  claiming  the 
right  of  possession,  which,  being  refused,  appellant  sued  out  a  writ 
of  replevin  for  the  house,  which  the  sheriff  executed  by  removing  the 
brick  pillars,  on  which  the  house  had  been  placed  by  Ranz  and  Den- 

<9  A  structure  or  article  annexed  by  the  licensee  to  the  land  of  the  li- 
censor retains  its  character  as  personalty  so  that  it  may  be  made  the  subject 
of  a  chattel  mnrt^ase,  IMalott  v.  Price,  "l09  Ind.  22,  9  N.  E.  71S  (ISSr,) ;  or 
conveyed  by  a  bill  of  sale.  Aldrich  v.  Parsons,  6  N.  H.  ooo  (1S34) ;  if  tlie  li- 
censor refuses  to  permit  the  licensee  to  remove  it  the  latter  may  maintain 
trover,  O.sgood  v.  Howard,  6  Greenl.  (C  Me.)  452,  20  Am.  Dec.  322  (1S.30) ;  or 
replevin.  District  Tp.  of  Corwin  v.  Moorehead,  43  Iowa,  406  (1S7C),  even 
thonsh  the  licensee  has  for  two  years  voluntarily  been  out  of  possession  of 
the  land  and  structure,  Western  North  Carolina  it.  Co.  v.  Deal,  90  N.  C.  110 
(1SS4). 

A  father  gave  his  son  permission  to  erect  a  house  and  barn  on  the  father's 
land  and  to  occupy  it,  telling  him  that  he  would  ultimately  give  him  the  land. 
The  son  so  built.  He  later  died  ;  the  father  refused  to  allow  the  e.'^ecutor 
to  remove  the  building.  Held,  this  is  not  a  conversion.  lyeland  v.  Gassett.  17 
Vt,  403  (1845).  Ace:  Humphreys  v.  Newman,  51  Me.  40  (1863).  Compare 
Washburn  v.  Sproat,  16  Mass.  449  (1820). 


Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHER  345 

nis,  and  detaching  the  "addition"  erected  by  appellee,  and  removed  it 
from  appellee's  lot,  but  to  what  place  it  was  taken  by  the  sheriff,  or 
what  became  of  it,  the  record  does  not  disclose. 

The  question  in  the  case  is :  Was  this  house,  when  moved  by  Den- 
nis and  Ranz  to  Dennis'  lot,  and  there  placed  on  brick  pillars  sunk  in 
the  ground,  and  to  which  appellee,  after  his  purchase,  built  the  addi- 
tion fixed  to  the  building  by  nails,  and  occupied  it  as  his  dwelling, 
|)ersonal  or  real  property?  If  the  former,  the  action  of  replevin  would 
lie,  on  the  authority  of  Ogden  v.  Stock,  34  111.  522.  That  case  does 
not  show  the  building  was  fixed  to,  and  had  become  a  part  of,  the  soil 
of  another  lot,  after  it  was  removed,  as  in  this  case.  It  was  built  on 
blocks,  resting  on  planks,  but  how  it  was  fastened  to  the  soil  after  re- 
moval, is  not  disclosed.  In  that  case,  also,  the  contract  of  sale  pro- 
vided, that,  if  the  vendee  should  make  default  in  any  of  the  payments, 
the  vendor  should  have  the  right  to  consider  the  agreement  terminated, 
and  to  treat  the  purchaser,  his  representatives,  or  assigns,  as  tenants 
at  will,  at  a  specified  rent.  Nothing  of  this  appears  in  this  case,  nor 
is  it  shown  that  any  written  contract  existed  for  the  sale  and  convey- 
ance of  this  lot,  by  appellant,  to  Singleton,  nor  that  it  was  any  part 
of  the  bargain  that  Singleton  was  to  build  upon  the  lot.  The  proof  is, 
appellant  sold  the  lot  to  him  for  one  hundred  and  fifty  dollars,  on  one 
year's  time,  at  ten  per  cent.  No  note  taken — no  contract  providing  for 
a  deed  executed — -no  stipulation  as  to  forfeiture  on  non-payment,  and 
from  aught  that  does  appear,  Singleton  can  yet  perform  his  contract, 
and  demand  a  deed.  He  may  be  able  to  satisfy  a  court  of  equity  he 
has  equitable  rights,  and  may  yet  obtain  a  title  to  the  lot. 

But  we  are  clear  in  the  opinion  that,  if  this  house,  being  placed  on 
pillars  on  appellant's  lot,  for  permanency,  for  a  residence,  not  to  serve 
a  temporary  purpose,  it  became  a  part  of  the  realty,  and  its  removal 
to  another  lot,  and  there  fixed  to  the  soil  for  permanency,  it  was  on 
that  lot  a  part  of  the  lot,  and  could  not  be  taken  from  it  by  a  writ  of 
replevin.  For  the  trespass  in  removing  the  structure  from  appellant's 
lot,  an  action  of  trespass  might  lie ;  replevin  would  not,  for  there  the 
building  was  a  part  of  the  realty.  There  can  be  no  question,  if  Single- 
ton had  the  title  to  the  lot,  he  could  have  severed  the  house  from  it, 
and  sold  it  as  personal  property ;  but  when  the  same  house  was  re- 
moved, and  became  a  part  of  another  lot — a  part  of  the  realty — it  then 
ceased  to  be  personalty,  and  for  a  damage  to  it  an  action  of  replevin 
can  not  be  maintained.  This  is  much  like  the  case  of  Dooley  v.  Crist, 
25  111.  551,  where  it  was  said  to  be  a  fundamental  rule,  that  all  improve- 
ments or  additions  placed  upon  land,  of  a  permanent  nature,  adapted 
to  its  use  and  better  enjoyment,  became  a  part  of  the  land.  The  ex- 
ception is,  in  trade  fixtures,  and  such  erections  as  a  tenant  may  make 
for  his  own  convenience,  with  no  regard  to  permanency.  By  express 
agreement  of  parties,  even  structures  designed  to  be  permjinent,  placed 


346  FIXTURES  ,  (Ch.  5 

by  a  tenant  upon  land  or  by  a  vendee,  may  be  removed  as  personal 
property ;  or,  if  the  owner  of  the  soil,  by  deed,  sells  a  tenement  erected 
upon  the  land,  it  would  become  dissevered,  and  be  converted  from  real 
to  personal  property.  But,  as  a  general  rule,  when  a  building  is  erected 
on  the  land,  the  presumption  is,  it  is  a  part  of  the  real  estate,  and  not 
personalty,  and  to  take  it  out  of  the  operation  of  this  rule,  a  state  of 
facts  must  be  shown  which  rebuts  the  presumption.  And  the  court 
further  say,  even  when  a  stranger  constructs  a  building  upon  the  land 
of  another,  without  his  consent,  it  becomes  a  part  of  the  land,  and 
he  would  become  a  trespasser  by  removing  it. 

Testing  this  case  by  what  is  there  said,  if  it  was  Singleton's  inten- 
tion, when  he  built  the  house  on  the  lot,  to  render  the  improvement  per- 
manent when  erected,  there  can  be  no  question  it  became  a  part  of  the 
freehold,  and  no  subsequent  change  of  intention  changed  its  character 
to  that  of  personal  property.  Not  being  the  owner  of  the  lot,  he  could 
not  sever  the  building  from  it,  if  the  intention  at  the  time  of  erecting 
it  was  to  render  it  a  part  of  the  realty,  and  this  fact  is  found  by  the 
court  trying  the  cause. 

This  being  so,  the  lot  being  the  property  of  appellant,  the  building 
became  a  part  of  it,  not  as  a  chattel,  but  as  part  and  parcel  of  the 
realty,  and  any  one  meddling  with  it,  to  disturb  it,  would  be  a  tres- 
passer on  the  realty.  So,  when,  by  means  of  a  trespass,  the  building 
was  placed  on  the  Dennis  lot,  upon  brick  pillars  sunk  in  the  ground, 
it  became  a  part  of  that  lot,  it  was  incorporated  into  the  realty,  and 
was  not  the  subject  of  a  writ  of  replevin.  In  its  transit  from  one  lot 
to  the  other,  it  might  be  regarded  as  personalty,  but  when  it  became  at- 
tached to  the  soil,  it  lost  that  character. 

As  to  the  advances  made  by  appellant,  for  plastering  and  carpenter's 
work,  it  appears  a  large  part  of  that  has  been  arranged  by  the  services 
of  Mrs.  Singleton.  But  there  is  no  proof  these  advances  were  made 
at  Singleton's  request,  and  if  they  were,  they  do  not  change  the  na- 
ture of  the  property.  In  equity,  perhaps,  appellant  might  establish  a 
lien  for  the  amount. 

Holding  these  views,  we  must  affirm  the  judgment. 

Judgment  affirmed. 


'Sec.  2)         ANNEXATION  TO  THE  LAND  OF  ANOTHEK  347 

SHOEMAKER  v.  SIMPSON. 

(Supreme  Court  of  Kansas,  1876.     16  Kan.  43.) 

Valentine,  J.""  This  was  an  action  of  replevin  brought  by  Shoe- 
maker, Miller  &  Co.  against  Wm.  A.  Simpson  and  others,  for  the  re- 
covery of  twenty-six  bars  of  railroad  iron.  The  facts,  stated  briefly, 
are  substantially  as  follows :  Originally  Shoemaker,  Miller  &  Co. 
owned  a  large  lot  of  railroad  iron  (including  said  twenty-six  bars)  at 
the  state  line,  near  Wyandotte.  They  intended  to  use  said  iron  in 
building  a  railroad,  which  they  had  previously  agreed  to  build  for  the 
Kansas  Pacific  Railway  Company,  (then  Union  Pacific  Railway  Com- 
pany, Eastern  Division,)  from  Junction  City,  westwardly.  They  em- 
ployed said  Kansas  Pacific  Railway  Company  to  transport  said  iron 
from  the  state  line  westwardly  to  the  place  where  they  expected  to 
use  it.  At  the  same  time  William  A.  Simpson  (one  of  the  defendants) 
owned  certain  town  lots  in  the  city  of  Lawrence,  on  the  north  side  of 
the  Kansas  river,  and  between  the  said  river  and  the  Kansas  Pacific 
Railway.  Previously  a  railroad  track  had  been  constructed  across  said 
lots  from  the  Kansas  Pacific  railway  to  said  river.  But  at  this  time,  the 
iron  which  had  originally  been  put  on  said  track  had  been  removed 
therefrom,  and  only  the  road-bed  and  cross-ties  then  remained.  About 
this  time  the  Kansas  Pacific  Railway  Company,  or  its  agents,  took  said 
twenty-six  bars  of  iron  from  the  iron  of  Shoemaker,  Miller  &  Co.  at 
the  state  line,  transported  them  to  Lawrence,  and  then  spiked  them 
down  on  the  said  cross-ties  on  the  lots  of  said  William  A.  Simpson. 
This  was  done  by  the  Kansas  Pacific  Railway  Company,  or  its  agents, 
for  the  temporary  purpose  of  obtaining  some  ninety  car-loads  of  sand 
from  the  Kansas  river,  and  it  was  intended  to  remove  said  iron  as  soon 
as  the  sand  was  obtained.  This  was  all  done  without  the  knowledge  or 
consent  of  either  Shoemaker,  Miller  &  Co.,  or  said  Simpson.  The 
railway  company  had  however  taken  other  iron  from  Shoemaker,  Mil- 
ler &  Co.  for  which  they  subsequently  settled,  but  the  parties  never 
settled  for  this  particular  iron,  and  Shoemaker,  Miller  &  Co.  objected 
to  the  railway  company  taking  or  using  their  iron  in  any  such  manner. 
Afterward,  said  Simpson  through  his  agents  removed  said  twenty-six 
bars  of  iron  from  his  said  lots,  claiming  the  same  to  be  his  own.  Shoe- 
maker, Miller  &  Co.  then  commenced  this  action,  and  replevied  said 
twenty-six  bars  of  iron  from  said  Simpson  and  his  agents,  the  other  de- 
fendants. The  action  was  tried  in  the  court  below  by  the  court  with- 
out a  jury.  The  court  made  separate  and  special  findings  of  fact  and 
of  law.  Upon  these  findings  the  court  rendered  judgment  for  the  de- 
fendants and  against  the  plaintiffs. 

50  Part  of  the  opinion  is  omitted. 


348  FIXTURES  (Ch.  5 

We  think  the  court  below  erred.  We  know  of  no  way  by  which  an 
innocent  person  can  be  permanently  and  legally  deprived  of  his  prop- 
erty against  his  will  by  the  wrongs  and  trespasses  of  others,  so  long  as 
it  remains  within  the  power  of  such  innocent  person  to  reclaim  his 
property  without  committing  any  serious  or  substantial  injury  to  the 
person  or  property  of  any  other  person.  *  *  *  The  theory  upon 
which  the  defendants  claim  that  the  property  of  the  plaintiffs  became 
their  property  is  as  follows:  The  said  iron  was  spiked  down  to  said 
cross-ties.  It  then  became  a  part  of  the  realty;  and  as  the  defendants 
owned  the  realty,  they  therefore  owned  the  iron.  And  they  further 
claim  that  the  subsequent  removal  of  the  iron  from  said  cross-ties  did 
not  have  the  effect  to  change  the  property  back  from  themselves  to  the 
plaintiffs.  The  whole  question  in  this  case  therefore  depends  upon 
whether  said  twenty-six  bars  of  iron  became  a  part  of  the  defendants' 
real  estate  as  between  the  plaintiff's  and  the  defendants.  If  it  did  not 
become  real  estate  at  all,  or  if  it  did  not  become  real  estate  as  between 
the  plaintiffs  and  defendants,  then  the  plaintiffs  must  recover.  It  be- 
ing real  estate  as  between  the  defendants  and  the  railway  company,  or 
as  between  the  defendants  and  every  other  person  in  the  World  except 
the  plaintiffs,  would  not  enable  the  defendants  to  recover.  Now  we 
suppose,  that  where  one  person  or  one  corporation  owns  both  the  road- 
bed of  a  railroad  and  the  iron  attached  to  it,  the  iron  is  unquestionably 
a  part  of  the  realty.  And  where  a  trespasser,  not  owning  the  road-bed, 
attaches  his  own  iron  to  the  road-bed,  the  iron  immediately  becomes  a 
part  of  the  realty,  and  belongs  to  the  owner  of  the  road-bed.  But  nei- 
ther of  these  cases  is  the  present  case.  It  is  sometimes  very  difficult 
under  the  peculiar  circumstances  of  a  particular  case  to  determine 
whether  a  particular  thing  is  a  part  of  the  realty  or  not.  It  does  not 
depend  upon  one  fact  alone,  but  generally  upon  several  facts.  And 
among  these  facts  are  those  of  attachment  to  the  soil,  the  intention  of 
the  parties,  and  those  facts  which  enter  in  to  show  where  the  equities 
and  justice  of  the  case  are.  Even  the  nature  and  extent  of  the  attach- 
ment have  much  weight  in  determining  whether  a  given  thing  is  a  part 
of  the  realty  or  not.  Even  a  trespasser  may  place  his  personal  prop- 
erty on  the  soil  of  another,  where  no  connection  exists,  without  it  be- 
coming real  estate,  or  without  it  becoming  the  property  of  the  owner  of 
the  soil.  While  on  the  other  hand,  the  owner  of  the  soil  might  even 
steal  the  personal  property  of  another,  and  so  incorporate  it  into  his 
real  estate  that  it  would  become  a  part  thereof,  and  could  never  be  re- 
claimed by  the  owner.  And  between  these  two  extremes  there  are  in- 
finite degrees  and  modes  of  attachment  and  connection  of  various 
things  with  the  soil.  Where  the  connection  is  slight,  property  is  often 
considered  personal  property ;  whereas,  if  the  connection  were  close 
and  intimate  it  would  be  considered  real  estate.     *     *     * 

In  the  present  case  the  connection  between  the  iron  and  the  real  es- 


Sec.  2)  ANNEXATION   TO    THE    LAND    OF   ANOTHER  349 

tate  to  which  it  was  attached  is  not  very  close  or  intimate.  The  iron 
may  be  removed  without  substantial  injury  to  either  the  iron  or  the 
real  estate.  And  railroad  iron,  fastened  down  to  the  road-bed,  as  this 
was,  does  not  necessarily  become  a  part  of  the  real  estate.  It  may  re- 
main personal  property.  Hunt  v.  Bay  State  Iron  Co.,  97  Mass.  279; 
Haven  v.  Emery,  33  N.  H.  66.  It  was  never  the  intention  of  the  plain- 
tiffs that  this  iron  should  become  a  part  of  the  defendants'  real  estate. 
Indeed,  no  person  ever  had  any  such  intention  except  the  defendants 
themselves.  The  plaintiffs  never  intended  to  give  this  iron  to  the  de- 
fendants. They  never  intended  to  abandon  it  to  any  person  who  might 
take  possession  of  it.  They  never  committed  any  trespass  or  wrong  to- 
ward the  defendants.  And  it  would  be  against  justice  and  equity  to 
deprive  them  of  their  property.  *  *  *  ^  wrongdoer  may  lose  his 
personal  property  by  voluntarily  attaching  it  to  the  land  of  another.  A 
person  not  a  wrongdoer,  may,  by  his  own  consent,  lose  his  personal 
property  by  attaching  it  or  allowing  it  to  be  attached  to  the  land  of  an- 
other. A  person  may  even  lose  his  personal  property  by  wholly  aban- 
doning it  to  any  person  who  may  pick  it  up,  although  it  may  never  be 
attached  to  any  person's  real  estate.  And  an  innocent  person  may 
sometimes  against  his  consent  lose  his  personal  property  by  the  same 
being  incorporated  into  the  real  estate  of  some  other  person,  so  that  it 
cannot  be  separated  without  great  inconvenience  and  loss.  But  we  do 
not  think  that  any  innocent  person  can  be  deprived  of  the  title  to  his 
personal  property  against  his  consent  by  having  it  attached  without 
his  consent  to  the  real  estate  of  another  by  a  third  person,  where  such 
personal  property,  can  be  removed  without  any  great  inconvenience, 
and  without  any  substantial  injury'  to  the  real  estate.     *     *     * 

The  judgment  of  the  court  below  will  be  reversed,  and  cause  re- 
manded with  the  order  that  judgment  be  rendered  on  the  findings  of 
the  court  below  in  favor  of  the  plaintiffs,  and  against  the  defendants.'^ 

51  Aec:  Eisenhauer  v.  Quinn,  36  Mont  368,  93  Pac.  38,  14  L.  R.  A.  (N.  S.) 
435.  122  Am.  St.  Rep.  370  (1907). 

Compare  Keese  v.  Jared,  1.5  Ind.  142,  77  Am.  Dec.  88  (1860) ;  Michigan  Mut. 
Life  Ins.  Co.  v.  Cronk,  03  Mich.  49,  52  N.  W.  1035  (1S92). 

A.  mortgaged  to  B.  a  house  and  lot.  A.  then  tortiously  removed  the  house 
and  annexed  it  to  another  piece  of  land.  Held,  the  house  is  still  subject  to 
B.'s  mortgage.  Hamlin  v.  Parsons,  12  Minn.  108  (GU.  59),  90  Am.  Dec.  284 
(1SG7). 


350  FIXTURES  (Ch.  5 

MITCHELL  V.  BRIDGMAN. 
(Supreme  Court  of  Minnesota,  1898.     71  Minn.  360,  74  N.  W.  142.) 

Start,  C.  J.""  Action  to  quiet  title,  and  permanently  to  enjoin  the 
defendant  from  removing  a  dwelling  house  from  lot  9,  block  3,  Stearns' 
addition  to  the  city  of  St.  Cloud. 

The  answer  alleged  that  the  defendant  built  the  house  upon  lot  9  by 
mistake,  and  in  the  belief  that  he  was  erecting  it  upon  his  own  lot, 
which  adjoined  the  lot  upon  which  the  house  was  so  placed,  and  prayed 
judgment  that  he  be  allowed  to  remove  the  hduse,  or  be  decreed  a  lien 
on  the  premises  for  the  value  of  the  house.  The  trial  court  made  its 
findings  of  fact  and  conclusions  of  law,  and  ordered  judgment  for  the 
plaintiff  for  the  relief  asked,  and  defendant  appealed  from  the  judg- 
ment. The  assignments  of  error  raise  the  question  whether  the  facts 
found  by  the  trial  court  justify  its  conclusion  of  law  and  order  for 
judgment,  which  in  effect  deny  the  defendant  any  compensation  for 
the  house,  and  enjoin  him  from  removing  it. 

The  material  facts,  as  found  by  the  court,  are:  The  defendant,  in 
the  spring  of  1890,  supposing  that  he  was  building  the  house  here  in 
question  upon  his  own  adjoining  lot,  in  fact  built  it  by  mistake  upon 
lot  9;  but  such  mistake  was  the  result  of  his  own  negligence  and  care- 
lessness, and  the  fault  of  no  one  else.  Lot  9  was  then  owned  by 
George  H.  Sheldon,  W.  C.  Wren,  and  Henry  T.  Elliott.  After  the 
erection  of  the  house  upon  lot  9  the  defendant  discovered  his  mistake, 
and  entered  into  negotiations  with  the  resident  agent  of  the  owners  for 
the  purchase  of  the  lot,  and  it  was  agreed  between  them  that  the  de- 
fendant should  pay  $300  for  the  lot.  The  agent  procured  from  the 
landowners  a  deed  of  the  lot,  and  had  it  ready  to  deliver  to  the  defend- 
ant upon  the  payment  of  the  purchase  price.  Though  requested  and 
urged  by  the  agent  to  pay  the  money  and  take  the  deed,  he  neglected 
to  do  so;  and  the  deed  was  thereafter  withdrawn  from  the  agent  by 
W.  B.  Mitchell,  acting  for  the  owners  of  the  lot,  and  the  name  of 
Jane  H.  Whittlesey  was  by  him  substituted  and  inserted  in  the  deed  as 
the  grantee  (the  name  of  the  grantee  having  been  left  blank),  and 
thereupon  she  paid  to  the  grantors  tlie  purchase  price  for  the  lot,  and 
the  deed  was  delivered  to  her  on  August  3,  1892,  and  duly  recorded. 

Ever  since  this  date,  until  her  death,  which  occurred  after  the  com- 
mencement of  this  action,  in  1894,  Jane  H.  Whittlesey  was  the  owner 
in  fee  of  lot  9,  and  in  possession  by  her  tenant  of  it  and  the  house 
thereon.  She  died  pending  this  action,  and  her  administrator,  William 
B.  Mitchell,  was  substituted  as  plaintiff.     The  trial  court  also  found 

£^2  Part  of  tlie  opinion  of  Start,  C.  J.,  and  the  opinion  of  Canty,  J.,  are 
omitted. 


Sec.  2)  ANNEXATION    TO   THE    LAND    OF   ANOTHEB  351 

that  Jane  H.  Whittlesey  acquired  title  to  the  house  and  lot  without  any 
intention  on  her  part  to  wrong  or  defraud  the  defendant,  who  claims 
an  interest  in  the  house,  and  threatens  to  move  the  same  from  the  lot, 
but  that  he  has  no  right  or  interest  therein.  Judged  by  the  record,  this 
seems  to  be  a  hard  case,  and  that  tliere  ought  to  be  some  relief  for  the 
defendant;  but  upon  the  facts  found,  and  the  settled  rules  of  law,  there, 
is  none.     *     *     * 

There  is  neither  evidence  nor  finding  in  this  case  that  the  owners  of 
the  lot  had  any  notice  at  any  time  that  the  defendant  was  building  the 
house  on  their  lot,  or  that  there  was  any  license  from  them,  express  or 
implied,  that  he  might  do  so.  The  case  stands  upon  the  specific  finding 
that  the  defendant  built  the  house  upon  the  lot  of  another  by  mistake, 
supposing  that  he  was  erecting  the  same  upon  his  own  adjoining  lot, 
but  that  such  mistake  was  the  result  of  his  own  negligence,  and  the 
fault  of  no  one  else.  That  the  house  became  a  part  of  the  lot  upon 
which  it  was  built,  and  the  absolute  property  of  the  owners  thereof,  is 
a  proposition  too  well  settled  to  admit  of  discussion.  Our  occupying 
claimants'  statute  has  modified  the  rigor  of  the  common  law  in  many 
cases,  but  none  of  its  provisions  are  applicable  to  a  case  like  the  one 
at  bar. 

Judgment  affirmed.'' 

63  Ace:  Goddard  v.  Bolster,  6  Greenl.  (6  Me.)  427,  20  Am.  Dec.  320  (1S30); 
DoscLer  v.  BlacUiston,  7  Or.  143  (1879).  So  where  the  mistnke  was  not  neg- 
ligent. Stillman  v.  Hauler,  7  How.  (S  Miss.)  421  (1843) ;  Huebschnianu  v.  Mc- 
Henry,  20  Wis.  G55  (1872).  Contra,  McDaniel  v.  Llpp,  41  Keb.  713,  00  N.  W. 
SI  (1894),  senilile. 

A  railroad  company,  having  the  right  of  eminent  domain,  constructed  a 
roadbed  and  lahl  its  rails  across  A.'s  land  without  first  condemning  it.  In  a 
.subsetiuent  action  to  fix  the  amount  to  lie  paid  for  the  land  by'  the  railroad, 
held,  the  value  of  the  rails  and  ties  should  not  be  included.  Newgass  v. 
Kailway  Co.,  54  Ark.  140,  15  S.  W.  188  (1891) ;  San  Francisco  &  N.  P.  R. 
Co.  V.  Taylor,  86  Cal.  246,  24  Pac.  1027  (1890) ;  Justice  v.  Nesquelioning  Val- 
ley B.  Co.,  87  Pa.  28  (1878).  Compare  Trimmer  v.  Pennsylvania,  P.  &  B.  E. 
Co.,  55  N.  J.  Law,  46,  25  Atl.  932  (1892). 


352  FIXTURES  (Ch.  5 


SECTION  3.— CONFLICTING  RIGHTS  ARISING  FROM  THE 
AMBIGUOUS  NATURE  OF  FIXTURES 


BRENNAN  et  al.  v.  WHITAKER  et  al. 
(Supreme  Court  of  Ohio,  1S64.     15  Ohio  St.  446.) 

[The  plaintiff  sold  a  boiler  and  engine  to  Farley  and  Ketcham  who 
executed  to  the  plaintiff  a  purchase  money  chattel  mortgage.  This 
latter  was  duly  recorded  as  such.  The  boiler  and  engine  were  incor- 
porated in  a  factory  owned  by  the  mortgagors.  They  subsequently 
executed  to  the  defendants  a  real  mortgage  upon  the  mill  to  secure  an 
indebtedness  owing  by  them  to  the  defendants.  This  mortgage  was 
duly  recorded,  and  the  defendants  subsequently  took  possession  of  the 
mill.  The  plaintiffs  demanded  possession  of  the  machinery.  The  de- 
fendants refused  and  the  plaintiffs  brought  action  for  conversion. 
Judgment  for  defendants.     Plaintiffs  appealed.] 

White,  J.^*  I.  The  plaintiff's  seek  to  recover  for  a  tort  arising 
from  the  conversion  of  the  property  in  controversy;  and,  in  order  to 
establish  their  title  to  such  property,  as  against  the  defendants  Whit- 
aker  and  Phillips,  rely  upon  the  chattel  mortgage.  In  order  to  ascer- 
tain the  relation  in  which  Whitaker  and  Phillips  stand  to  this  mort- 
gage, it  is  proper,  in  the  first  place,  to  determine  whether  they  had 
notice  of  its  existence  at  the  time  they  received  their  real  estate  mort- 
gage. The  issue,  upon  this  question  of  notice,  has  been  twice  found  in 
favor  of  the  defendants,  by  the  court  of  common  pleas,  and  this  find- 
ing we  are  now  asked  to  review,  on  the  ground  that  it  is  against  the 
evidence.  On  this  point,  we  only  deem  it  necessary  to  state,  that  the 
testimony  in  the  court  below  was  conflicting;  and  while,  as  original 
triers  of  fact,  we  would  have  been  inclined  to  find  differently,  yet  we 
can  not  say  that  the  finding  is  so  manifestly  wrong  as  to  warrant  this 
court  in  reversing  the  judgment  on  this  ground. 

II.  The  next  question  is  whether  as  between  Farley  &  Ketcham,  the 
mortgagors,  and  Whitaker  and  Phillips,  the  mortgagees,  in  the  real  es- 
tate mortgage,  the  property  in  controversy,  became  a  part  of  the  free- 
hold.   We  are  of  opinion  that  it  did.     *     *     * 

III.  The  remaining  question  is,  whether  the  chattel  mortgage  to  the 
plaintiffs,  as  against  the  real  estate  mortgagee,  deprives  the  property  in 
controversy  of  the  character  of  fixtures.  The  plaintiffs  claim  that  this 
is  the  effect  of  the  chattel  mortgage ;  and  that  they  have  the  same  right 
to  recover  the  property  from  the  mortgagees  (Whitaker  and  Phillips), 

«*  Part  of  the  opinion  is  omitted. 


Sec.  3)  CONFLICTING    EIGHTS  353 

without  notice,  as  they  would  have  had  against  Farley  &  Ketcham,  if 
the  real  estate  mortgage  had  not  been  given. 

It  is  not  necessary  to  inquire  what,  as  against  mortgagees  without 
notice,  would  have  been  the  rights  of  a  party,  other  than  the  owner  of 
the  freehold,  who  might  have  placed,  in  the  same  manner  upon  the 
premises,  the  property  in  question,  under  some  agreement  with  the 
owner,  for  a  temporary  purpose,  and  with  the  right  of  removal ;  nor 
as  to  what  would  have  been  the  effect  if  the  property  had  been  an- 
nexed by  the  tortious  act  of  Farley  &  Ketcham.  The  facts  in  this  case 
raise  neither  of  these  questions,  and  we  forbear  entering  into  an  ex- 
amination of  the  authorities  cited  bearing  upon  them.  Here  it  was 
not  only  the  intention  of  Farley  &  Ketcham  to  annex  the  property  to, 
and  make  it  a  part  of,  the  freehold,  but  their  so  doing  was  according 
to  the  understanding  of  the  parties  when  the  mortgage  to  the  plain- 
tiffs was  executed.  In  the  mortgage  it  said  the  boilers  are  "designed 
to  be  used  in  their  (F.  &  K.'s)  saw-mill,"  and  power  is  given  the  plain- 
tiffs on  default  of  payment,  "to  take  possession  thereof  (mortgaged 
property)  whether  the  same  shall  be  attached  to  the  freehold  and  in 
law  become  a  part  of  the  realty  or  not."  The  right  given  to  the  plain- 
tiffs, by  the  mortgage,  to  enter  upon  the  premises  and  sever  the  prop- 
erty would,  doubtless,  have  been  effectual  as  between  the  parties.  But 
the  defendants  were  purchasers  without  notice  of  this  agreement. 
The  filing  of  chattel  mortgages,  is  made  constructive  notice,  only,  of 
incumbrances  upon  goods  and  chattels.  The  defendants  purchased, 
and  took  a  conveyance  of  real  estate,  of  which  the  property  now  in 
question  was,  in  law,  a  part ;  and,  in  our  opinion,  it  devolved  upon  the 
plaintiffs  who  sought  to  change  the  legal  character  of  the  property,  and 
create  incumbrances  upon  it,  either  to  pursue  the  mode  prescribed  by 
law  for  incumbering  the  kind  of  estate  to  which  it  appeared  to  the 
world  to  belong,  and  for  giving  notice  of  such  incumbrance,  or,  other- 
wise, take  the  risk  of  its  loss  in  case  it  should  be  sold  and  conveyed 
as  part  of  the  real  estate  to  a  purchaser  without  notice.  It  is  true  that 
in  the  case  of  Ford  v.  Cobb,  20  N.  Y.  344,  it  was  held  that  an  agree- 
ment which  was  evidenced  by  a  chattel  mortgage  was  effectual  against 
a  subsequent  purchaser  of  the  land,  without  notice.  But  it  seems  to 
us  to  be  the  sounder  rule,  and  more  in  accordance  with  principle,  and 
the  policy  of  our  recording  laws,  to  require  actual  severance,  or  notice 
of  a  binding  agreement  to  sever,  to  deprive  the  purchaser  of  the  right 
to  fixtures  or  appurtenances  to  the  freehold.  Fortman  v.  Goepper,  14 
Ohio  St.  565  ;  2  Smith's  L.  C.  259 ;  Fryatt  v.  Sullivan  Co.,  5  Hill  (N. 
Y.)  116;  Richardson  v.  Copeland,  6  Gray  (Mass.)  536,  66  Am.  Dec. 
424:    Frankland  et  al.  v.  MouUon  et  al.,  5  Wis.  I.     *     *     *  " 

Judgment  affirmed. 

56  Ace.:  Pierce  v.  George,  lOS  Mass.  78,  11  Am.  Rep.  310  (1S71) ;  Ice,  Light 
&  Water  Co.  v.  Lone  Star  Engine  &  Boiler  Works,  15  Tex.  Civ.  App.  694,  41 
S.  W.  835  (1S97). 

Big.Pehs.Pbop.— 23 


334  FIXTURES  (Ch.  5 

SOWDEN  V.  CRAIG. 
(Supreme  Court  of  Iowa,  1868.  '  26  Iowa,  156,  96  Am.  Dec.  125.) 

[Replevin  for  engines,  boilers,  and  other  machinery.  They  were 
sold  by  the  plaintiffs  to  one  Burris  in  1856,  who  gave  a  chattel  mort- 
gage back  which  was  duly  recorded  in  the  same  year.  The  articles 
were  erected  in  a  mill  owned  by  Burris  so  that  they  could  not  be  sev- 
ered without  partly  destroying  the  mill.  This  erecting  was  done  under 
the  plaintiff's  supervision.  In  1857  one  Druse  worked  in  the  erection 
of  the  mill,  he  had  no  actual  knowledge  of  the  plaintiff's  mortgage  un- 
til after  completing  his  work  in  June,  1857.  He  later  established  his 
mechanic's  lien  by  judgment,  bought  in  the  property,  dismantled  the 
mill  and  sold  the  machinery  to  the  defendant  who  bought  without 
knowledge  of  die  facts.] 

Cole,  J.^'*  *  *  *  'pj^g  defendant's  vendor  (Druse)  acquired  his 
title  to  the  property  under  a  mechanic's  lien  claim.  By  our  law  then 
in  force  (Code  of  1851,  §  981),  it  was  provided,  that  the  mechanic  had 
"a  lien  upon  the  land,  including  the  building,  with  its  appurtenances, 
for  the  amount  due  him  for  work  or  material,  against  all  persons  ex- 
cept incumbrancers  by  judgment  rendered,  and  by  instrument  record- 
ed, before  the  commencement  of  the  work  or  the  furnishing  of  the  ma- 
terial." From  the  facts  proven  in  the  case,  which  are  shown  by  the 
statement  preceding  this  opinion,  it  appears  that  the  plaintiff's  mort- 
gage or  bill  of  sale  upon  the  property  in  controversy,  as  chattels,  was 
duly  recorded  at  the  time  tlie  mechanic  commenced  his  work.  The 
notice  imparted  by  the  due  and  proper  record  of  such  an  instrument, 
though  called  a  constructive  notice,  is  just  as  effectual  for  the  protec- 
tion of  the  rights  of  the  parties  as  an  actual  notice  by  the  word  of 
mouth,  or  otherwise.  Any  other  construction  of  our  registry  laws 
would  effectually  nullify  them. 

The  property  in  controversy  was  not,  so  far  as  the  evidence  shows, 
attached  to  the  real  estate  at  the  time  the  mechanic  commenced  work. 
The  record  of  the  mortgage  upon  it,  as  chattels,  was,  therefore,  no- 
tice to  him  of  the  rights  of  the  plaintiffs  therein.  Having  notice 
then  of  plaintiff's'  rights,  he  could  not,  by  his  own  act  and  labor,  take 
their  property,  and,  by  making  the  same  fixtures  upon  the  real  estate, 
subordinate  their  rights  to  his.  Nor  would  the  fact  that  the  plaintiffs 
had  sold  the  property  for  the  purpose  of  having  the  same  made  fix- 
tures, and  had  sent  their  own  agent  or  employee  to  aid  and  direct  in 
the  putting  up  of  the  machinery,  operate  to  defeat  their  right.  This 
property,  it  will  be  borne  in  mind,  is  the  legitimate  subject  for  fix- 
tures, and  is  that  class  of  property  about  which  the  law  permits  par- 
ies Part  of  the  opinion  of  Cole,  J.,  and  the  dissenting  opinion  of  Dillon,  C. 
J.,  are  omitted. 


Sec.  3)  CONFLICTING   EIGHTS  355 

ties  to  contract  so  as  to  control,  as  between  themselves,  its  character, 
after  being  affixed,  making  it  either  personal  property  or  real  estate. 
The  mortgaging  of  it  as  personal  property  would,  as  between  the  par- 
ties, and  those  having  notice  thereof,  make  it  such.  Of  course,  a  dif- 
ferent rule  would  obtain,  in  relation  to  bricks,  lime,  boards,  beams,  etc., 
used  in  constructing  a  house;  these,  by  such  use,  lose  their  individ- 
uality, and  become  absorbed  in,  and  made  a  part  of,  rather  than  simply 
annexed  to,  the  real  estate. 

The  precise  point  we  rule  in  this  case  is,  that  where  the  owner  of 
real  estate  executes  a  mortgage  upon  chattels,  which  may  properly 
be  made  fixtures,  and  subsequently  affixes  them  to  tlie  real  estate,  that 
no  person  having  knowledge  of  such  facts  can,  by  purchase  of  the  real 
estate  or  otherwise,  acquire  from  the  mortgagor  any  title  to  such  chat- 
tels paramount  to  the  mortgagee  thereof. 

^^'hat  would  be  the  rights  of  the  parties  in  case  the  chattels  were 
affixed  before  die  mortgage,  or  where  the  third  party  acquired  his  ti- 
tle without  notice  of  it,  we  do  not  determine. 

It  may  not  be  improper  for  us  to  state  that  we  have  given  to  this 
case  the  most  deliberate  consideration,  and  in  the  light  of  able  and 
searching  arguments.  We  have  also  examined  in  detail  the  numerous 
cases  cited  by  counsel  in  their  respective  briefs,  but  we  do  not  deem  it 
necessary  for  us  to  review  them  herein.  We  ground  our  decision  upon 
well  settled  principles,  and  are  strengthened  in  our  conclusion  by  the 
fact  that  none  of  the  cases  cited  are  in  necessary  conflict  with  it. 

Reversed. ^^ 

Dillon,  C.  J.,  dissents. 


HOBSON  v.  GORRIXGE. 

(Court  of  Appeal.     [1S97]  1  Ch.  182.) 

This  was  an  appeal  from  a  decision  of  Kekewich,  J.,  upon  a  motion 
to  restrain  the  defendant  from  selling  or  disposing  of  to  any  person 
other  than  the  plaintiff  an  11  horse  power  Stockport  gas  engine,  erect- 
ed at  the  South  Coast  Steam  Saw  Mills,  \\'orthing,  lately  in  the  occu- 
pation of  J.  G.  King,  the  hirer  of  the  engine  from  the  plaintiff.  The 
defendant  claimed  as  mortgagee  of  the  saw  mills  to  be  entitled  to  the 
engine  as  a  fixture.  On  the  hearing  of  the  motion,  it  appearing  that 
negotiations  were  pending  for  the  sale  of  the  mortgaged  premises,  a 
sum  of  £55.  was  deposited  by  agreement  in  the  joint  names  of  the 

57  Ace. :  Ford  v.  Cnbh,  20  X.  Y.  344  (ISiiOl ;  Lnwton  Pressed  Brick  &  Tile 
Co.  V.  Ross-Kellar  Triple  Pressure  Brick  Mach.  Co.,  3.3  Okl.  59,  124  Pac.  43, 
49  L.  R.  A.  (X.  S.I  39.5  (1912) ;  Monarch  Laundry  v.  Westbrook,  109  Va.  3S2, 
63  S.  E.  1070  (1909).  To  same  effect,  see  language  of  court  in  Sword  y.  tow, 
122  111.  4S7,  13  N.  E.  826  (1SS7). 


356  FIXTURES  (Ch.  5 

plaintiff's  and  defendant's  solicitors,  as  representing  the  value  of  the 
engine,  to  abide  the  result  of  the  motion,  which  was  to  be  treated  as 
the  trial  of  the  action.  Kekewich,  J.,  decided  that  the  defendant  was 
entitled  to  the  money.    The  plaintiff  appealed. 

The  facts  were  as  follows : 

By  a  contract  in  writing  dated  January  7,  1895,  Hobson,  thereinafter 
called  the  owner,  let  to  King,  a  builder,  thereinafter  called  the  hirer, 
the  gas  engine  in  question  upon  what  is  known  as  the  hire  and  pur- 
chase system  for  the  purpose  of  being  fixed  upon  King's  land  at 
Worthing,  of  which  King  was  the  owner  in  fee,  and  on  which  a  saw 
mill  had  been  erected.  By  clause  3  the  hirer  agreed  to  pay  the  owner 
for  the  hire  and  use  of  the  gas  engine  the  sum  of  il8.  before  delivery, 
and  the  sum  of  £3.  10s.  per  month  after  delivery  for  a  period  of  ten 
months.  Clause  4  provided  that  if,  during  the  continuance  of  the  hir- 
ing, the  hirer  failed  to  pay  the  hire  or  any  part  thereof  the  agreement 
should  forthwith  determine,  and  the  owner  should  be  at  liberty  to  re- 
possess himself  of  and  to  remove  the  gas  engine,  and  the  hirer  should 
have  no  claim  whatever  against  the  owner,  either  for  money  he  had 
paid  for  the  use  of  the  gas  engine  or  for  any  damage  sustained  by  rea- 
son of  the  retaking  thereof.  By  clause  6  the  owner  agreed  that  at  the 
expiration  of  ten  months,  if  the  hirer  should  in  all  things  have  per- 
formed his  part  of  the  agreement,  the  rent  or  hire  named  in  clause  3 
should  cease,  and  the  gas  engine  should  become  the  absolute  property 
of  the  hirer  on  the  further  payment  of  £3.  Clause  7  provided  that 
the  agreement  should  not  be  construed  to  operate  in  any  way  as  a  con- 
tract for  the  sale  of  the  gas  engine,  but  only  as  an  arrangement  for 
the  hire  thereof,  and  unless  and  until  the  hiring  terminated  under  the 
provisions  of  clause  6  the  hirer  should  have  no  right  or  property  in  the 
gas  engine  at  law  or  in  equity  save  as  bailee  thereof  for  hire. 

This  gas  engine,  as  was  known  to  Hobson,  was  required  by  King  to 
drive  his  saw  mill,  and  the  way  in  which  it  was  to  be  erected  and  was 
in  fact  erected  was  as  follows :  In  the  first  place  a  bed  of  concrete  was 
prepared  in  which  were  embedded  two  iron  plates,  out  of  each  of  the 
four  outside  corners  of  which  an  iron  bolt  projected  upwards  in  a  ver- 
tical position,  having  a  screw  at  its  uppermost  end.  The  base-plate  of 
the  engine  was  fitten  with  four  holes,  one  at  each  outside  corner,  so 
that  when  the  engine  was  placed  in  position  upon  the  concrete  bed  the 
four  bolts  projected  through  the  four  holes  in  the  base  of  the  engine, 
and  nuts  were  then  screwed  down  tightly  upon  the  tops  of  the  bolts, 
and  thus  the  engine  was  kept  in  position  and  prevented  from  rocking 
and  shifting,  as  it  would  have  done  if  merely  placed  upon  the  concrete 
foundation  without  the  aid  of  the  projecting  bolts.  There  was  aftixed 
to  the  engine  when  delivered  to  King  a  plate  called  a  "hire  plate,"  bear- 
ing the  inscription,  "This  engine  is  the  property  of  Wilfred  Hobson,  80 
Queen  Victoria  Street,  E.  C." 


Sec.  3)  CONFLICTING    RIGHTS  357 

King  paid  some  of  the  monthly  instalments  to  Hobson  and  then  fell 
into  arrear,  and  he  never  completed  the  stipulated  payments  so  as  to 
become  the  owner  of  the  gas  engine  as  a  chattel. 

By  a  deed  of  transfer  and  further  charge  dated  July  24,  1895,  a 
mortgage  debt  of  £400.  secured  on  King's  land  by  a  deed  dated  March 
26,  1894,  was  assigned  to  the  Rev.  Mr.  Gorringe,  and  King  and  his 
mortgagee  conveyed  to  him  the  land  in  question  (together  with  the 
saw  mill,  engine-house,  warehouses,  and  other  building  erected  thereon, 
and  the  fixed  machinery  and  fixtures)  in  fee  simple  to  secure  the  said 
sum  of  i400.,  and  a  further  advance  of  i200.,  making  a  total  of  £600., 
subject  to  the  usual  proviso  for  redemption. 

On  January  17,  1896,  King  was  adjudicated  a  bankrupt,  and  in 
March,  1896,  the  mortgagee,  Mr.  Gorringe,  entered  and  took  possession 
of  the  mortgaged  premises,  together  with  the  gas  engine,  which  he 
found  in  its  place  as  before  mentioned. 

A.  L.  Smith,  L.  J.'"  [The  Lord  Justice  stated  the  facts  substan- 
tially as  above  set  out,  and  continued  as  follows:] 

The  question  is  whether  Mr.  Gorringe  is  entitled,  under  the  above 
circumstances,  to  the  gas  engine.  It  is  not  disputed  that  he  is  entitled 
to  the  land ;  but  the  plaintiiT,  Mr.  Hobson,  denies  that  he  is  entitled  to 
the  gas  engine  upon  the  ground  that  it  had  never  become  King's  and 
had  always  remained  a  chattel  belonging  to  him.  Hobson.  There  can 
be  no  doubt,  upon  a  mortgage  in  fee  of  the  land,  that,  as  between  the 
mortgagor  and  mortgagee,  the  mortgagee  is  entitled  to  all  fixtures 
which  may  be  upon  the  land,  whether  placed  there  before  or  after  the 
mortgage.  If  North,  J.,  in  the  passage  in  his  judgment  which  has 
been  referred  to  in  Cumberland  Union  Banking  Co.  v.  Maryport  Hae- 
matite Iron  &  Steel  Co.,  [1892]  1  Ch.  425,  meant  to  hold  otherwise, 
in  our  opinion  he  was  in  error ;  but  we  doubt  if  he  intended  so  to  hold. 
The  case  of  Gough  v.  Wood  &  Co.,  [1894]  1  Q.  B.  713,  decided  in  this 
court,  in  no  way  assists  the  plaintiff,  and  has  no  application  to  the 
present  case.  That  case  was  decided  solely  upon  the  ground  that  the 
mortgagee  had  acquiesced  in  the  removal  by  the  mortgagor  during  his 
tenancy  of  trade  fixtures.  For  additional  confirmation  of  the  ratio 
decidendi  of  this  case  what  was  said  by  Lindley,  L.  J.,  and  by  Kay, 
L.  J.,  in  the  case  of  the  Huddersfield  Banking  Co.  v.  Henry  Lister  & 
Son,  [1895]  2  Ch.  273,  282,  286,  may  be  referred  to.  Even  if  in  the 
present  case  a  license  had  been  granted  by  Gorringe  to  King  to  remove 
the  gas  engine  during  the  continuance  of  a  term,  neither  of  which  con- 
ditions in  fact  existed  Gorringe,  by  entering  and  taking  possession  of 
the  land  and  engine,  would  have  determined  such  license. 

We  now  come  to  the  real  point  made  on  behalf  of  the  plaintiflf, 
Hobson.    It  is  this.    It  is  said  that  this  gas  engine  never  was  a  fixture, 

5  8  Part  of  the  opinion  is  omitted. 


358  FIXTURES  (Ch.  5 

but  always  remained  a  chattel,  and  consequently  never  passed  to  Gor- 
ringe  as  mortgagee  of  the  land.  It  obviously  did  not  pass  to  him  as  a 
chattel  under  the  mortgage  to  him  of  "fixed  machinery,"  for,  if  a  chat- 
tel, it  ever  remained  Hobson's,  and  never  was  the  property  of  King; 
and  unless  Mr.  Gorringe  takes  the  engine  as  part  of  the  land  mort- 
gaged to  him  he  does  not  take  it  at  all.  Now,  leaving  out  of  consider- 
ation for  the  present  the  hire  and  purchase  agreement  of  Jaimary  7, 
1895,  there  is  a  sequence  of  authorities  which  establish  that  the  gas 
engine,  affixed  as  it  was  and  for  the  purpose  for  which  it  was  to  King's 
freehold,  ceased  to  be  a  chattel  and  became  part  of  the  freehold.   *   *   * 

But  it  was  argued  that  the  terms  of  the  hiring  and  purchase  agree- 
ment caused  this  engine  to  remain  a  chattel,  notwithstanding  its  annex- 
ation to  the  soil,  for  it  was  said  that  the  intention  of  the  parties  who 
placed  it  where  it  was  must  be  considered,  and  if  this  consideration 
shewed  tliat  the  intention  was  that  the  chattel  was  not  to  be  a  fixture, 
though  actually  fixed  to  the  freehold,  it  still  remained  a  chattel.  In 
support  of  this  argument  a  passage  in  the  judgment  of  Lord  Black- 
burn (then  Blackburn,  ].),  when  delivering  the  judgment  of  the  Ex- 
chequer Chamber  in  Holland  v.  Hodgson,  L.  R.  7  C.  P.  328,  was 
quoted.  That  learned  judge,  when  dealing  with  what  were  or  were 
not  fixtures,  says,  L.  R.  7  C.  P.  335 :  "Perhaps  the  true  rule  is,  that 
articles  not  otherwise  attached  to  the  land  than  by  their  own  weight 
are  not  to  be  considered  as  part  of  the  land,  unless  the  circumstances 
are  such  as  to  shew  that  they  were  intended  to  be  part  of  the  land,  the 
onus  of  shewing  that  they  were  so  intended  lying  on  those  who  assert 
that  they  have  ceased  to  be  chattels,  and  that,  on  the  contrary,  an  ar- 
ticle which  is  affixed  to  the  land  even  slightly  is  to  be  considered  as 
part  of  the  land,  unless  the  circumstances  are  such  as  to  shew  that  it 
was  intended  all  along  to  continue  a  chattel,  the  onus  lying  on  those 
who  contend  that  it  is  a  chattel."  The  question  in  each  case  is  wheth- 
er the  circumstances  are  sufficient  to  satisfy  the  onus. 

It  is  said  on  behalf  of  the  plaintifl^  that  the  hire  and  purchase  agree- 
ment shews  an  intention  on  Mr.  Hobson's  part,  as  also  on  King's  part, 
that  the  gas  engine  should  remain  a  chattel  until  King  had  paid  the 
stipulated  instalments,  which  he  never  did.  Now,  if  the  engine  had 
been  a  trade  fixture,  erected  by  King  as  tenant,  with  a  limited  interest, 
we  apprehend  that  when  affixed  to  the  soil,  as  it  was,  it  would  have  be- 
come a  fixture — i.  e.,  part  of  the  soil,  and  would  immediately  have 
vested  in  the  owner  of  the  soil,  subject  to  the  right  of  King  to  remove 
it  during  his  term.  "Such,"  says  Lord  Chelmsford,  in  Bain  v.  Brand 
(1876)  1  App.  Cas.  762,  772,  "is  the  general  law.  But  an  exception  has 
been  long  established  in  favour  of  a  tenant  erecting  fixtures  for  the 
purposes  of  trade,  allowing  him  the  privilege  of  removing  them  dur- 
ing the  continuance  of  the  term.  When  he  brings  any  chattel  to  be 
used  in  his  trade  and  annexes  it  to  the  ground  it  becomes  a  part  of  the 


Sec.  3)  CONFLICTING    RIGHTS  359 

freehold,  but  with  a  power  as  between  himself  and  his  landlord  of 
bringing  it  back  to  the  state  of  a  chattel  again  by  severing  it  from  the 
soil.  As  the  personal  character  of  the  chattel  ceases  when  it  is  fixed 
to  the  freehold,  it  can  never  be  revived  as  long  as  it  continues  so  an- 
nexed." 

It  seems  to  us  that  the  true  view  of  the  hiring  and  purchase  agree- 
ment, coupled  with  the  annexation  of  the  engine  to  the  soil  which  took 
place  in  this  case,  is  that  the  engine  became  a  fixture — i.  e.,  part  of  the 
soil — when  it  was  annexed  to  the  soil  by  screws  and  bolts,  subject  as 
between  Hobson  and  King  to  this,  that  Hobson  had  the  right  by  con- 
tract to  unfix  it  and  take  possession  of  it  if  King  failed  to  pay  him  the 
stipulated  monthly  instalments.  In  our  opinion,  the  engine  became  a 
fixture — i.  e.,  part  of  the  soil — subject  to  this  right  of  Hobson  which 
was  given  him  by  contract.  But  this  right  was  not  an  easement  created 
by  deed,  nor  was  it  conferred  by  a  covenant  running  with  the  land. 
The  right,  therefore,  to  remove  the  fixture  imposed  no  legal  obligation 
on  any  grantee  from  King  of  the  land.  Neither  could  the  right  be  en- 
forced in  equity  against  any  purchaser  of  the  land  without  notice  of 
the  right,  and  the  defendant  Gorringe  is  such  a  purchaser.  The  plain- 
tiff's right  to  remove  the  chattel  if  not  paid  for  cannot  be  enforced 
against  the  defendant,  who  is  not  bound  either  at  law  or  in  equity  by 
King's  contract.  The  plaintiff's  remedy  for  the  price  or  for  damages 
for  the  loss  of  the  chattel  is  by  action  against  King,  or,  he  being  bank- 
rupt, by  proof  against  his  estate. 

This,  in  our  judgment,  is  sufficient  to  determine  this  case  in  favour 
of  the  defendant  j  but  as  another  point  has  been  stoutly  argued  on  be- 
half of  the  plaintiff,  we  will  deal  with  it.  It  is  said  that  the  intention 
that  the  gas  engine  was  not  to  become  a  fixture  might  be  got  out  of  the 
hire  and  purchase  agreement,  and,  if  so,  it  never  became  a  fixture  and 
jiart  of  the  soil,  and  it  was  said  that  the  case  of  Holland  v.  Hodgson, 
L.  R.  7  C.  P.  328,  had  so  decided.  For  this  point  it  must  be  assumed 
that  such  intention  is  manifested  by  the  hiring  and  purchase  agreement, 
though,  as  before  stated,  we  think  it  is  not.  Now,  in  Holland  v.  Hodg- 
son, L.  R.  7  C.  P.  328,  Lord  Blackburn,  when  dealing  with  the  "cir- 
cumstances to  shew  intention,"  was  contemplating  and  referring  to  ■ 
circumstances  which  shewed  the  degree  of  annexation  and  the  object 
of  such  annexation  which  were  patent  for  all  to  see,  and  not  to  the  cir- 
cumstances of  a  chance  agreement  that  might  or  might  not  exist  be- 
tween an  owner  of  a  chattel  and  a  hirer  thereof.  This  is  made  clear 
by  the  examples  that  Lord  Blackburn  alludes  to  to  shew  his  meaning. 
He  takes  as  instances  (a)  blocks  of  stone  placed  in  position  as  a  dry 
stone  wall  or  stacked  in  a  builder's  yard ;  (b)  a  ship's  anchor  affixed  to 
the  soil,  whether  to  hold  a  ship  riding  thereto  or  to  hold  a  suspension 
bridge.  In  each  of  these  instances  it  will  be  seen  that  the  circum- 
stance to  shew  intention  is  the  degree  and  object  of  the  annexation 


SCO  FIXTURES  (Ch.  5 

which  is  in  itself  apparent,  and  thus  manifested  the  intention.  Lord 
Blackburn  in  his  proposed  rule  was  not  contemplating  a  hire  and  pur- 
chase agreement  between  the  owner  of  a  chattel  and  a  hirer  or  any  oth- 
er agreement  unknown  to  either  a  vendee  or  mortgagee  in  fee  of  land, 
and  the  argument  that  such  a  consideration  was  to  be  entertained,  in 
our  judgment,  is  not  well  founded.     *     *     * 

The  point  made  upon  the  hire  plate  on  the  gas  engine  when  delivered 
comes  to  nothing,  for  it  is  no  more  than  an  indication  of  what  the 
agreement  was  between  Hobson  and  King,  and  as  there  is  no  evidence 
whatever  that  Mr.  Gorringe  was  ever  made  aware  of  it,  it  cannot  af- 
fect his  right  as  mortgagee  in  fee  of  King's  land. 

In  our  judgment  Kekewich,  J.,  was  right  when  he  gave  judgment 
as  he  did  for  the  defendant,  and  this  appeal  must  be  dismissed  with 
costs.°* 


ADAMvS  MACHINE  CO.  v.  INTERSTATE  BUILDING,  ETC., 

ASS'N. 

(Supreme  Court  of  Alabama,  189S.     119  Ala.  97,  24  South.  857.) 

The  bill  was  filed  by  the  appellee  to  foreclose  a  mortgage  on  real  es- 
tate, made  by  respondent,  A.  B.  Jones,  and  to  enjoin  the  removal  of 
certain  fixtures  alleged  to  have  been  conveyed  by  the  mortgage.  The 
property  to  which  appellant  claims  title,  retained  on  a  conditional  sale 
to  Jones,  consists  of  an  engine,  boiler,  and  hot  wat€r  heater,  with  at- 
tachments, used  in  connection  with  and  part  of  an  electric  light  plant 

5  0  Ace.:  Bank  &  Trust  Co.  v.  Fred  W.  Wolf  Co.,  114  Tenn.  255,  86  S.  W. 
310  (1904) ;  Washburn  v.  Inter-Mountuin  Mining  Co.,  56  Or.  578,  109  Pac. 
382,  Ann.  Cas.  1912C,  357  (1910). 

A.  leased  to  B.,  who  built  a  heavy  platform  with  the  agreement  that  he 
could  remove  it  at  the  expiration  of  the  lease.  At  the  expiration  A.  prevent- 
ed B.  from  removing  and  leased  the  premises  as  the.v  stood  to  C,  who  knew 
nothing  of  the  agreement,  and  made  repairs  on  the  platform.  Held,  C.  may 
enjoin  B.  from  removing  it  during  C.'s  term.  Trask  v.  Little,  182  Mass.  8, 
G4  N.  E.  206  (1902). 

A.  conveyed  to  B.  by  chattel  mortgage,  duly  recorded,  spinning  machines 
kept  in  place  by  cleats,  a  steam  engine,  and  shafting.  A.  later  gave  to  C,  who 
took  in  good  faith,  a  real  mortgage  of  "the  mill  and  all  the  machinery  and 
fixtures"  therein.  Held,  B.  can  hold  the  spinning  machines  as  against  C. 
Keeler  v.  Keeler,  31  N.  J.  Eq.  ISl  (1S79)-. 

C.  bought  A.'s  mill.  B.  claimed  a  piece  of  the  machinery,  and  offered  evi- 
dence that  he  had  delivered  it  to  A.  for  him  to  buy  if  he  was  satisfied  with 
it  after  trial.  Held,  the  evidence  is  admissible.  Causey  v.  Empire  Plaid 
Mills,  119  N.  C.  ISO,  25  S.  E.  SC3  (189G). 

A  sul)sequent  grantee  or  real  mortgagee,  who  takes  with  notice  of  the  prior 
mortgage  or  conditional  bill  of  sale,  is  subject  thereto.  Wood  v.  Hollv  Mfg. 
Co.,  100  Ala.  326,  13  South.  948,  40  Am.  St.  Rep.  56  (1893);  Ingersoll  v. 
Barnes,  47  Mich.  104,  10  N.  W.  127  (ISSl). 

The  cases  are  collected  in  49  L.  It.  A.  (N.  S.)  396. 


Sec.  3)  CONFLICTING   EIGHTS  3'<1 

for  lighting  the  buildings  of  a  girls'  boarding  school.  The  appeal  is 
taken  from  a  decree  overruling  appellant's  demurrers,  and  a  motion  to 
dismiss  the  bill  for  want  of  equity  as  to  appellant. 

Brickell,  C.  J.  There  is  but  a  single  question  presented  by  this 
appeal,  and  that  is  whether  a  vendor  of  chattels  intended  for  annexa- 
tion to  the  freehold,  retaining  in  himself  the  title,  and  expressly  stipu- 
lating that  it  is  not  to  pass  except  upon  the  condition  of  full  payment 
of  the  price  by  the  vendee,  the  chattels  having  been,  as  was  contem- 
plated, annexed  to  the  freehold,  the  condition  remaining  unperformed, 
can  assert  and  maintain  his  title  against  a  subsequent  bona  fide  mort- 
gagee of  the  vendee,  upon  a  present  consideration,  without  notice  of 
the  right  and  title  of  the  vendor. 

The  question  has  been  of  such  frequent  discussion  and  decision  in 
this  court  that  controversy  ought  to  be  silenced,  and  we  deem  it  neces- 
sary only  to  refer  to  the  cases,  extending  through  a  period  of  nearly 
20  years,  which  uphold  the  title  of  the  vendor,  and  cast  upon  the  sub- 
sequent mortgagee  the  duty  of  inquiring  and  ascertaining  for  himself, 
as  must  ever)-  purchaser  of  chattels  (statutes  of  registration  not  afford- 
ing protection  nor  providing  otherwise),  the  title  of  the  vendor  or 
mortgagor.  Fairbanks  v.  Eureka  Co.,  67  Ala.  109;  Summer  v.  Wood, 
67  Ala.  139,  42  Am.  Rep.  104;  Harmon  v.  Goetter,  87  Ala.  325,  6 
South.  93;  Fields  v.  Williams,  91  Ala.  502,  8  South.  808;  Boulden  v. 
Oregon  Co.,  92  Ala.  182,  9  South.  283 ;  Weinstein  v.  Freyer,  93  Ala. 
257,  9  South.  285,  12  L.  R.  A.  700;  Bingham  v.  Vandegrift,  93  Ala. 
283,  9  South.  280;  Wood  v.  Manufacturing  Co.,  100  Ala.  351,  13 
South.  948,  46  Am.  St.  Rep.  56;  Warren  v.  Liddell,  110  Ala.  232,  20 
South.  89.  The  last-cited  case  is  a  full  review  of  the  authorities,  and 
an  elaborate,  and  e.xhaustive  discussion  of  the  question  in  all  its  as- 
pects. Opposing  authority  may  be  found  elsewhere,  but  the  courts  of 
this  state  must  be  governed  by  this  long  line  of  decisions. 

We  find  no  averment  in  the  bill  of  any  fact  or  facts  taking  the  case 
without  the  operation  of  the  principle.  The  city  court  erred  in  over- 
ruling the  demurrer  and  the  motion  to  dismiss  the  bill  for  want  of  eq- 
uity as  to  the  appellant,  and  the  decree  must  be  reversed,  the  demurrer 
and  motion  to  dismiss  sustained,  and  as  to  the  appellant  the  bill  dis- 
missed. 

Reversed  and  rendered."" 

60  A.,  with  B.'s  consent,  erected  a  sawmill  on  B.'s  land;  it  being  agreeil 
that  it  should  remain  A.'s  personal  property.  It  was  later  sold  to  C.  as  A.'s 
personal  property  with  B.'s  consent.  B.  later  took  possession  of  it  and  the 
land,  and  executed  a  conveyance  thereof  to  D.,  who  took  in  ignorance  of 
C.'s  claim.  Held,  C.  mav  recover  in  an  action  of  trover  against  V.  the  value 
of  the  sawmill.  Russell  v.  Richards,  10  Me.  429,  25  Am.  Dee.  254  (1S33). 
See  Rev.  St.  Me.  1903,  c.  75,  §  32.  Compare  Case  v.  L'Oeble  (C.  0.)  &1  Fed.  5S2 
(1S97). 


362  FIXTURES  (Ch.  5 


CAMPBELL  V.  RODDY. 

(Court  of  Errors  and   Appeals  of  New  Jersey,   1SS8.     44  N.  J.   Eq.  244,  14 
Atl.  279,  6  Am.  St.  Rep.  SS9.) 

Reed,  J."  *  *  *  The  facts,  then,  present  the  bare  question: 
What  is  the  position  of  a  mortgagee  of  real  estate  into  which  mort- 
gaged chattels  have  become  incorporated  by  the  act  of  the  mortgagor, 
subsequent  to  the  execution  of  the  real  estate  mortgage? 

The  elementary  rule  of  the  common  law  was  quicquid  plantatur  solo 
solo  cedit.  It  may  be  stated,  as  a  rule  of  great  antiquity,  that  what- 
ever is  affixed  to  the  soil  becomes,  in  contemplation  of  law,  a  part  of  it, 
and  is,  consequently,  subjected  to  the  same  rights  of  property  as  the 
soil  itself.  Broom's  Maxims,  268.  But  many  exceptions  have  become 
engrafted  upon  this  rule. 

"The  law  of  fixtures,"  says  Kent,  "is  in  derogation  of  the  original 
rule  of  common  law  which  subjected  everything  affixed  to  the  freehold 
to  the  law  governing  the  freehold,  and  it  has  grown  into  a  system  of 
judicial  legislation,  so  as  almost  to  render  the  right  of  removal  of  fix- 
tures a  general  rule  instead  of  being  an  exception."    2  Kent's  Com.  343. 

The  question  whether  property  is  or  is  not  a  fixture  arises  most  fre- 
quently between  the  tenant  of  a  particular  estate  and  those  in  reversion 
or  remainder.  As  between  these  parties  it  is  held  by  a  well-settled  line 
of  cases,  that  the  intention  of  the  tenant  making  the  annexation  is  one 
of  the  three  tests  to  be  resorted  to  in  ascertaining  the  nature  of  the 
property.  It  is  equally  well  settled  that,  in  instances  aside  from  those, 
the  mental  attitude  of  the  person  making  the  annexation  cannot  modify 
the  legal  effect  resulting  from  an  incorporation  into  the  realty  of  that 
which  was  personal  property.  Thus  a  structure  erected  on  the  land  of 
another  will  become  the  property  of  the  owner  of  the  land,  although 
built  with  a  view  of  enforcing  an  adverse  right  in  the  land.  Sudbury 
V.  Jones,  8  Cush.  (Mass.)  184;  Lee  v.  Risdon,  7  Taunt.  188;  Wilde  v. 
Waters,  16  C.  B.  637;  Overton  v.  Williston,  31  Pa.  155. 

An  intent  existing  alone  in  the  mind  of  him  who  makes  the  annexa- 
tion, however,  differs  from  another  feature,  which  is  recognized  in  the 
cases  as  preserving  the  personal  character  of  the  property  annexed. 
That  feature  consists  in  the  existence  of  a  mutual  agreement,  express 
or  implied,  between  the  owner  of  the  real  estate  and  the  chattels,  in 
respect  to  the  manner  in  which  chattels  shall  be  regarded  after  their 
annexation.  Such  an  agreement  seems  to  be  entirely  efficacious  in 
preserving  the  personal  character  of  the  annexed  chattels  as  between 
the  parties  thereto.  Pope  v.  Skinkle,  45  N.  J.  Law,  39;  Harlan  v. 
Harlan,  20  Pa.  303 ;  Ewell  on  Fix.  66. 

«i  Part  of  the  opinion  is  omitted. 


Sec.  3)  CONFLICTING   BIGHTS  363 

This  rule,  which  seems  simple  enough  when  applied  to  a  cause  aris- 
ing between  the  respective  real  and  chattel  owners,  becomes  more  dif- 
ficult of  application  when  the  rights  of  persons  other  than  these  own- 
ers are  involved.  The  additional  question  then  arises,  how  far  such 
an  agreement  between  these  parties  can  affect  purchasers,  mortgagees, 
or  judgment  creditors  of  the  owner  of  the  real  estate  on  the  one  hand, 
or  of  the  chattels  on  the  other  hand.     *     *     * 

Whether  the  chattel  mortgage  in  the  present  cause  was  registered  or 
unregistered,  it,  as  between  the  parties  thereto,  created  a  lien  in  favor 
of  the  mortgagee  upon  the  engines  and  machinery  mortgaged.  The 
interest  of  the  mortgagee  of  the  chattels  as  well  as  that  of  the  prior 
mortgagee  of  the  real  estate,  under  the  doctrine  respecting  mortgages, 
both  real  and  personal,  which  obtains  in  this  state,  were  mere  securi- 
ties.   Woodside  v.  Adams,  40  N.  J.  Law,  417. 

The  inquiry  naturally  arises  how  far  this  lien  of  the  chattel  mortga- 
gee can  be  preserved  after  the  annexation. 

It  will  be  observed  that  the  question  now  presented  differs  radically 
from  that  which  would  have  arisen,  had  the  real  estate  mortgage  been 
executed  subsequent  to  the  annexation  of  the  chattels.  As  between  a 
lienor  who  consents  to  have  the  subject-matter  of  his  lien  transmuted 
into  a  shaf>e  by  which  subsequent  purchasers  and  mortgagees  are  liable 
to  be  subjected  to  deceptive  dealings,  there  seems  to  be  no  equitable 
ground  upon  which  the  lien  should  be  recognized  against  an  innocent 
subsequent  mortgagee  or  purchaser  for  value.  The  entire  spirit  of  our 
registry  acts  is  opposed  to  the  notion  that,  in  such  a  juncture  of  affairs, 
the  real  estate  purchaser  would  not  be  regarded  as  a  bona  fide  pur- 
chaser against  whom  the  chattel  mortgage  would  be  void.  But,  as  al- 
ready observed,  the  real  estate  mortgagees,  in  the  present  case,  held 
their  lien  before  the  attachment  to  the  realty  of  the  mortgaged  chattels. 
It  is  true  that  by  force  of  the  annexation  they  would  become  subjected 
to  the  lien  of  the  real  estate  mortgage  absolutely,  unless  the  lien  of  the 
chattel  mortgagee  inter\-enes.  Any  property  belonging  to  the  mortga- 
gor, which  he  chooses  to  annex  to  the  mortgaged  premises,  becomes 
realty.  But  it  is  difficult  to  perceive  any  equitable  ground  upon  which 
the  property  of  another,  which  the  mortgagor  annexes  to  the  mortgag- 
ed premises  should  inure  to  the  benefit  of  a  prior  mortgagee  of  the 
realty.  The  real  estate  mortgagee  had  no  assurance  at  the  time  he 
took  his  mortgage  that  there  would  be  any  accession  to  tlie  mortgaged 
property.  He  may  have  believed  that  there  would  be  such  an  acces- 
sion, but  he  obtained  no  right,  by  the  terms  of  his  mortgage,  to  a  lien 
upon  anything  but  the  property  as  it  was  conditioned  at  the  time  of  its 
execution.  He  could  not  compel  the  mortgagor  to  add  anything  to  it. 
So  long  therefore  as  he  secured  the  full  amount  of  the  indemnity  which 
he  took,  he  has  no  ground  for  complaint.  There  is  therefore  no  inequi- 
ty towards  the  prior  real  estate  mortgagee,  and  there  is  equity  toward 


364  FIXTURES  (Ch.  5 

the  mortgagee  of  the  chattels,  in  protecting  the  lien  of  the  latter  to  its 
full  extent  so  far  as  it  will  not  diminish  the  original  security  of  the 
former.  As  already  remarked,  the  real  estate  mortgagee  is  entitled  to 
any  annexation  made  by  his  mortgagor  of  his  own  property,  but  is  not 
entitled  to  the  property  of  others.  The  property  of  the  mortgagor  in 
these  chattels,  when  he  made  the  annexation,  was  an  equity  of  redemp- 
tion. So  far  as  this  interest  had  a  value  it  became  subjected  to  the 
lien  of  the  prior  real  estate  mortgagee,  but  the  value  of  his  interest  was 
the  value  of  the  property  subjected  to  the  lien. 

The  supreme  court  of  the  United  States  has  enunciated  a  rule  which 
I  regard  as  analogous  to  the  one  now  propounded.  It  is  in  respect  to 
the  acquisition  of  property  by  a  railroad  company  which  has  already 
given  a  mortgage  upon  its  road  and  franchises  and  upon  future  ac- 
quired property.  The  doctrine  announced  is,  that  the  mortgage  attach- 
es itself  to  the  property  in  the  condition  in  which  it  comes  to  the  mort- 
gagor's hands.  In  the  language  of  Justice  Bradley,  in  the  case  of  Unit- 
ed States  v.  New  Orleans  R.  R.  Co.,  12  Wall.  362,  20  L.  Ed.  434,  it 
only  attaches  to  such  interest  as  the  mortgagor  acquires,  and  if  he  pur- 
chase property  and  give  a  mortgage  for  the  purchase-money  the  deed 
which  he  receives  and  the  mortgage  which  he  gives  are  regarded  as  one 
transaction,  and  no  general  lien  impending  over  him,  whether  in  the 
shape  of  a  general  mortgage  or  judgment  or  recognizance,  can  displace 
such  mortgage  for  purchase-money.  This  rule  was  followed  in  Fos- 
dick  v.  Schall,  99  U.  S.  235,  25  L.  Ed.  339.  It  is  true  that,  in  the  opin- 
ions in  these  cases,  there  is  a  statement  that  the  rule  would  be  different 
if  the  articles  upon  which  the  lien  existed  became  incorporated  into  the 
road  itself.  Instances  may  be  imagined  where  the  exception  so  indi- 
cated would  be  proper.  Where  the  articles  are  of  such  a  character  that 
their  detachment  would  involve  the  dismantling  of  an  important  fea- 
ture of  the  realty,  their  annexation  might  well  be  regarded  as  an  aban- 
donment of  the  lien  by  him  who  impliedly  assented  to  the  annexation. 
.Shingles,  lumber,  brick  to  be  used  in  a  building,  railroad  iron  or  ties  to 
be  used  in  constructing  a  railroad,  are  apparent  samples  of  such  a  class 
of  chattels.  I  am  not  prepared  to  say,  however,  that  even  in  such  in- 
stances there  may  not  be  an  equitable  method  of  awarding  to  a  prior 
mortgagee  of  the  realty  all  his  rights,  while  preserving  in  some  degree 
the  interest  of  the  lienor  of  the  chattels.  For,  in  my  view,  the  equitable 
way  of  dealing  with  the  property  is,  to  preserve  the  right  of  the  prior 
real  estate  mortgagee  to  the  same  degree  of  security  which  he  would 
have  enjoyed  had  the  property  remained  as  when  mortgaged.  The 
preservation  of  that  right  in  its  full  measure  would,  in  some  instances, 
be  entirely  inconsistent  with  the  recognition  of  any  remaining  adverse 
right  in  an  indistinguishable  portion  of  the  realty.  The  question  in- 
volves merely  the  practical  application  of  equitable  principles  to  the 
diverse  interests.    I  regard  the  case  above  cited  as  relevant,  because  I 


Sec.  3)  CONFLICTING    EIGHTS  30j) 

see  no  greater  legal  difficulty,  in  preserving  the  lien  upon  property 
which  would  otherwise  become  subjected  absolutely  to  the  lien  of  a 
prior  real  estate  mortgage  by  way  of  accretion  or  estoppel,  than  if  it 
became  subject  to  such  mortgage  by  an  express  agreement  that  the 
mortgage  should  cover  after-acquired  property. 

In  the  practical  application  of  the  equitable  rule  that  the  lien  on  the 
chattels  must  give  way  to  the  previous  lien  upon  the  real  property  in 
the  degree  already  indicated,  there  is  no  difficulty  where  the  annexed 
chattels,  as  in  the  present  case,  are  a  distinguishable  and  separable  part 
of  the  realty.  If  the  detachment  of  the  articles  so  annexed  will  occa- 
sion no  damage  to  the  realty,  then  the  lien  upon  them  can  be  enforced 
in  the  same  degree  as  if  they  had  remained  chattels.  If  the  detach- 
ment would  occasion  some  diminution  in  the  value  of  the  freehold,  as  it 
would  have  stood  had  the  attachment  not  been  made,  then  the  deprecia- 
tion must  first  be  made  whole  to  the  real  estate  mortgagee  before  the 
right  of  the  chattel  mortgagee  can  be  recognized.  So  far  as  appears, 
in  the  present  case  there  can  be  no  appreciable  injury  to  the  realty  oc- 
casioned by  the  removal  of  the  engines  and  chattels. 

It  is  perceived  that  the  view  above  indicated  does  not  rest  upon  an 
agreement  which  presei^ves  the  chattel  nature  of  the  engines.  It  rests 
upon  an  equitable  preservation  of  the  lien  upon  chattels  after  they  are 
transmuted  into  realty.  The  limitation  upon  the  otherwise  legal  effect 
of  the  annexation,  is  merely  to  this  extent.  The  mortgagor's  interest 
in  the  chattels  is  not  relieved  from  the  legal  result  arising  from  the  an- 
nexation. If  an  engine  worth  $10,000  is  attached  by  the  mortgagor  of 
land  so  as  to  become  a  part  of  the  land,  I  see  no  reason  why  it  should 
retain  its  character  as  personalty  because  there  happens  to  be  a  pre- 
vious chattel  mortgage  upon  it  for  $500.  The  equity  of  redemption 
is  covered  by  the  prior  real  estate  mortgage. 

This  view  maA"  lead  to  an  inquiry,  when  the  occasion  arises,  whether 
such  annexation  will  cause  a  modification  of  the  legal  remedy  of  the 
chattel  mortgagee.  It  may  also,  where,  as  in  this  case,  only  a  part  of 
the  chattels  covered  by  one  chattel  mortgage  are  annexed,  call  for  a 
marshaling  of  securities  for  the  purpose  of  ascertaining  whether  the 
portion  annexed  is  still  liable  for  any  or  what  portion  of  the  sum  still 
due  upon  the  chattel  mortgage.  When,  however,  as  seems  to  be  proba- 
ble in  this  case,  the  totality  of  the  mortgaged  chattels  will  be  needed 
to  answer  the  claims  secured,  the  application  of  the  rule  is  simple. 

The  conclusion  is  that  the  decree  below  should  be  reversed,  and  the 
cause  remitted  to  the  court  of  chancery.  If  it  there  appears  that  the 
equity  of  redemption  in  the  chattels -is  valueless,  that  court  can  ex- 
clude them  from  the  sale  under  the  foreclosure  decree.  If  it  appears 
that  there  is  some  valuable  interest  in  the  equity  of  redemption,  the 
court  can  then  either  confine  the  sale  to  that  interest  so  far  as  the 
sale  concerns  these  chattels,  or  can  order  them  to  be  sold  absolutely 


366  FIXTURES  (Ch.  5 

and  leave  the  rights  which  the  parties  have  in  them  to  be  adjusted  in 
making  a  disposition  of  the  money  arising  from  the  sale."" 

For  affirmance:  Van  Syckul,  Brown,  Paterson,  Whitaker. 
For  reversal :  Thb  Chancellor,  Chief  Justice,  Depue,  Knapp, 
Magie,  Reed,  Scudder,  Clement,  Cole,  McGregor. 


TIPPETT  5:  WOOD  v.  BARHAM. 

(Circuit  Court  of  Apiieals  of  the  United   States,  Fourth   Circuit,  1910.     ISO 
Fed.  76,  103  C.  0.  A.  430,  37  L.  R.  A.  [N.  S.]  119.) 

The  question  at  issue  upon  this  appeal  arises  between  the  holders 
of  bonds  of  the  Peninsular  Pure  Water  Company  issued  under  and  se- 
cured by  a  mortgage  to  the  Knickerbocker  Trust  Company  and  Tip- 
pett  &  Wood,  the  appellants. 

By  deed  bearing  date  February  1,  1906,  and  recorded  in  the  clerk's 
office  of  Elizabeth  City  county,  Va.,  February  16,  1906,  the  Peninsula 
Pure  Water  Company  conveyed  to  the  Knickerbocker  Trust  Company 
of  New  York  City  all  of  its  property,  rights,  and  franchises  to  secure 
an  issue  of  $300,000  of  first-mortgage  bonds.  This  deed  contains  what 
is  generally  known  as  the  "after-acquii'ed  property  clause,"  the  lan- 
guage being :  "Does  grant,  bargain,  sell  and  convey  *  *  *  ^11  oth- 
er property,  real,  personal  or  mixed,  of  whatsoever  kind  or  descrip- 
tion, and  wheresoever  situated  now  owned  or  possessed  by  it,  or  which 
may  hereafter  be  acquired  by  it,  the  said  Peninsula  Pure  Water  Com- 
pany; also  all  corporate  and  other  franchises,  privileges,  rights,  bene- 
fits, immunities,  and  exemptions  *  *  *  either  by  legislative  grant 
or  contract,  or  otherwise."  By  deed  bearing  date  March  18,  1906, 
and  recorded  March  29,  1906,  Thomas  Harmond  and  wife  conveyed 
to  the  Peninsula  Pure  Water  Company  a  certain  tract  of  land  located 
in  the  town  of  Hampton,  in  the  county  of  Elizabeth  City.  And  by  a 
contract  bearing  date  March  9,  1906,  but  which  was  actually  executed 
some  time  after  that  date,  Tippett  &  Wood,  the  intervening  petition- 
ers, entered  into  an  agreement  with  the  Peninsula  Pure  Water  Com- 
pany and  Whetstone  &  Company  by  which  they  agreed  to  erect  for 

«2Acc.:  Chattel  inorts.iae,  Anderson  v.  Croamerv  Paclvase  Mfg.  Co..  S 
Idaho.  200.  G7  Pac.  A9?,.  50  L.  R.  A.  5.54,  101  ^Vin.  St.  Rep.  ISS  (190:;) ;  First 
Nat.  Rank  of  Waterloo  y.  Elmore.  52  Iowa,  541,  3  N.  W.  .547  (1S79)  ;  condition- 
al sale.  Hendv  v.  1  >inkerlioff.  57  Cal.  3.  40  Am.  Rep.  107  (ISSOi :  Blanchard  v. 
Eureka  Planing  Mill  Co.,  5S  Or.  37,  113  Pac.  5.5,  37  L.  R.  A.  (N.  S.)  1.33  (1911). 

A.  mortgaged  a  mill  and  its  machinery  to  B.  He  later  bought  from  C.  by 
conditional  sale  new  machinery,  which  he  sulistituted  for  the  old.  Held,  C. 
may  claim  the  new  machinei-j-  as  against  B.  Page  v.  Edwards,  04  Vt.  124,  23 
Atl".  917  (1S91).  Contra.  Bass  Foundry  &  Machine  Works  v.  Oallentine,  1)9 
Ind.  525  (1884).  Compare  Cox  v.  New  Bern  Lighting  &  Fuel  Co.,  151  N.  C. 
62,  65  S.  E.  648,  134  Am.  St.  Rep.  966,  18  Ann.  Cas.  936  (1909). 


Sec.  3)  CONFLICTING   EIGHTS  3G7 

the  use  of  the  Peninsula  Pure  Water  Company  a  certain  standpipe 
for  the  price  of  $8,148,  and  according  to  plans  and  specifications  re- 
ferred to  in  said  contract,  said  contract  being  under  the  corporate  seal 
of  all  parties.  This  standpipe  was  subsequently  erected  on  the  tract 
of  land  purchased  of  Thomas  Harmond  and  wife,  and  was  completed 
according  to  plans  and  specifications,  although  the  water  company  was 
placed  in  the  hands  of  tlie  receivers  before  there  was  a  formal  accept- 
ance of  the  standpipe  by  it.  The  water  company  prepared  a  concrete 
foundation  upon  which  the  standpipe  was  constructed,  and  to  which 
it  was  attached  by  bolts  and  taps.  This  contract  which  was  never  re- 
corded contained  the  following  clauses:  "No  right,  or  title  to  said 
standpipe,  or  to  the  material  of  which  the  same  is  composed,  shall  pass 
to  Whetstone  &  Company  or  Peninsula  Pure  Water  Company,  or  to 
any  other  persons  or  companies  until  all  the  payments  above  men- 
tioned shall  be  fully  made;  and,  if  in  any  case  all  the  payments  are 
not  made,  Tippett  &  Wood  may  enter  upon  the  property  and  remove 
the  material  or  standpipe  as  furnished  by  them."  "If  said  Whetstone 
&  Company  and  Peninsula  Pure  Water  Company  shall  keep  and  per- 
form all  the  terms  of  this  agreement  and  make  no  default  in  any  of 
said  payments  as  they  become  due,  and  in  that  case  said  Tippett  & 
Wood  will  make,  execute  and  deliver  to  Whetstone  &  Company  or 
Peninsula  Pure  Water  Company  a  good  and  sufficient  bill  of  sale  for 
said  standpipe."  Said  standpipe  was  built  and  completed  according 
to  plans  and  specifications  prior  to  receivership  proceedings ;  but  de- 
fault was  made  in  the  paymerits  provided  for  leaving  a  balance  unpaid 
of  $2,548,  with  interest  from  February  1,  1907,  and  $97.78,  with  in- 
terest from  March  1,  1907  (this  latter  sum  was  for  repairs  and  labor 
caused  by  the  alleged  delay  of  the  water  company  to  make  proper  tests 
after  completion  of  the  work),  whereupon  Tippett  &  Wood  filed  its 
petition  setting  up  its  contract  and  praying  leave  of  court  to  enter 
upon  the  premises  and  remove  the  said  standpipe  according  to  the 
terms  of  its  contract.     *     *     * 

The  report  of  the  special  master  filed  on  September  29,  1909,  al- 
lowed the  claim  of  Tippett  &  Wood  as  an  unsecured  debt,  and  disal- 
lowed the  priority  of  tlie  same  over  tlie  first  mortgage  bonds.  Tippett 
&  Wood,  by  counsel,  filed  exceptions  to  said  report  of  the  special  mas- 
ter, which  exceptions  were  overruled  by  the  court. 

Keller,  District  Judge  "^  (after  stating  the  facts  as  above).  In  the 
argument  it  was  admitted  that  if  the  standpipe  which  was  the  subject 
of  the  contract  between  appellants,  Whetstone  &  Co.  (the  general  sub- 
contractors) and  Peninsula  Pure  Water  Company,  became  a  fixture, 
so  as  to  become  annexed  to  the  freehold,  it  would  pass  under  the  lien 
of  the  mortgage  by  virtue  of  the  "after-acquired  property"  clause ; 
but  it  was  strenuously  insisted  that  by  the  terms  of  the  contract  it  is 

6  3  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


368  FIXTURES  (Ch.  5 

apparent  that  no  such  annexation  was  contemplated  by  the  parties  to 
that  contract.  We  do  not  so  understand  this  contract  that  the  sub- 
ject of  it  was  never  to  become  annexed  to  the  freehold,  but  rather  that 
there  was  an  attempt  to  so  preserve  the  status  of  the  subject  of  the 
contract  as  that,  in  the  event  of  necessity,  it  might  be  reclaimed  as  per- 
sonal property  the  title  whereto  had  not  been  parted  with  by  the  appel- 
lants. The  standpipe  was  to  be  erected  "for  the  use  of  the  Peninsula 
Pure  Water  Company,"  and  when  erected  in  accordance  with  specifi- 
cations attached  to  and  made  a  part  of  the  agreement  was  to  be  "ac- 
cepted by  Whetstone  &  Co.  and  Peninsula  "Pure  Water  Company." 

The  special  master  found :  That  the  standpipe  in  question  was  erect- 
ed upon  a  foundation  which  is  supposed  to  be  25  feet  in  diameter  and 
10  feet  in  depth,  and  is  attached  to  this  foundation  by  anchor  bolts 
10  feet  in  length  and  2  inches  in  diameter.  These  anchor  lx)lts  are 
imbedded  in  the  foundation.  The  standpipe  is  18  feet  in  diameter  and 
140  feet  high  above  the  top  of  the  foundation.  That  the  standpipe  is 
a  part  of  the  original  construction  work  of  the  system  of  waterworks 
intended  to  be  constructed,  and  an  indisi>ensable  part  of  such  system, 
as  without  such  a  standpipe  it  would  have  been  impossible  for  the  wa- 
ter company  to  have  furnished  its  consumers  with  water.  That  it  is 
one  of  the  integral  parts  of  the  property,  which  as  a  whole  was  to 
constitute  the  security  of  the  mortgage  creditors. 

As  between  the  parties  to  the  contract  doubtless  the  rights  reserved 
to  Tippett  &  Wood  would  be  binding,  but  as  the  question  here  is  be- 
tween the  appellants,  on  the  one  side,  and  the  trustee  under  the  mort- 
gage and  the  bondholders,  on  the  other,  it  is  pertinent  to  inquire  wheth- 
er tliere  is  any  reason  or  principle  upon  which  the  interest  of  these  lat- 
ter parties  who  were  not  parties  to  this  contract  can  be  affected  by  it. 
There  is  a  line  of  cases  which,  with  more  or  less  unanimity,  holds  that 
where  a  mortgage  exists  on  real  estate,  and  an  accession  is  subsequent- 
ly made  of  property  agreed  between  the  vendor  and  the  mortgagor  to 
be  treated  as  personalty  and  a  reservation  of  title  until  paid  for  agreed 
upon  between  vendor  and  mortgagor-purchaser,  such  accession,  if  it 
can  be  severed  from  the  realty  without  injury  to  the  latter  or  to  the 
value  of  the  security  for  the  mortgage  debt  as  it  stood  before  the  im- 
provement was  made,  will  be  impressed  with  the  same  character  as 
between  the  vendor  and  the  mortgagee  as  between  the  vendor  and 
mortgagor;  in  other  words,  that  it  does  not  become  real  estate,  and 
may  be  removed  without  invading  the  rights  of  the  mortgagee.  Of 
this  class  are  Campbell  v.  Roddy,  44  N.  J.  Eq.  244,  14  Atl.  279,  6  Am. 
St.  Rep.  889,  Binkley  v.  Forkner,  117  Ind.  185,  19  N.  E.  753,  3  L.  R. 
A.  33,  Gennan  Sav.  &  L.  Soc.  v.  Weber,  16  Wash.  95,  47  Pac.  224, 
38  L.  R.  A.  267,  and  Northwestern  Mut.  L.  Ins.  Co.  v.  George,  77 
Minn.  319,  79  N.  W.  1028,  1064,  and  these  cases  and  some  others  sup- 
port this  doctrine  more  or  less  completely. 


Sec.  3)  CONFLICTING    RIGHTS  309 

L'pon  the  other  hand,  there  are  many  cases  (some  of  which  will  be 
hereinafter  referred  to)  which  hold  that  personal  property  incorpo- 
rated into  or  affixed  to  real  estate  in  such  manner  that  it  would  be  sub- 
ject to  the  hen  of  an  existing;  mortgage  thereon  as  between  the  mort- 
gagor and  mortgagee  will  be  so  subject  to  the  lien  of  the  mortgage, 
notwithstanding  the  existence  of  an  agreement  between  the  vendor 
and  the  mortgagor,  that  it  shall  retain  its  character  as  personal  prop- 
erty, unless  the  mortgagee  be  also  a  party  to  such  agreement.  This 
is  what  is  generally  known  as  the  Massachusetts  rule,  and  it  has  been 
affirmed  by  many  other  courts  of  last  resort,  and  particularly  by  the 
Supreme  Court  of  the  United  States  in  several  cases  hereinafter  sep- 
arately referred  to. 

W'e  think  this  latter  doctrine  announces  the  correct  principle,  espe- 
cially where  the  application  is,  as  in  the  present  case,  confined  to  a 
case  wherein  the  mortgage  (containing  an  after-acquired  property 
clause)  has  been  drawn  for  the  purpose  of  embracing  the  entire  work- 
ing plant  of  the  corporation,  including  its  franchises,  as  in  such  cases 
it  is  usually  true  that  the  mortgage  is  given  at  a  time  when  the  real 
estate  is  but  very  insufficient  security  for  the  debt,  and  the  subsequent 
accessions  are  very  generally  made  by  the  expenditure  of  the  funds 
derived  by  reason  of  the  negotiation  of  the  bonds  secured  by  such  a 
mortgage,  and  the  mortgage  is  made  and  received  in  contemplation  of 
such  accessions.  In  such  cases  the  equities  of  the  beneficiaries  under 
the  mortgage  should  and  must  attach  to  such  accessions  as,  under  the 
description  contained  in  the  mortgage,  are  included  within  it,  unless 
some  higher  equity  or  a  legal  title  intervenes.     *     *     * 

Under  an  after-acquired  property  clause  such  as  that  contained  in 
the  mortgage  executed  to  secure  the  bondholders  in  the  case  at  bar, 
any  property  acquired  by  the  mortgagor  subsequent  to  the  date  of  ex- 
ecution and  delivery  of  the  mortgage,  and  which  is  within  the  general 
description  contained  therein,  will  become  as  fully  subject  to  the  lien 
of  the  mortgage  in  equity  as  if  such  property  had  been  owned  by  the 
mortgagor  at  the  date  of  the  execution  and  delivery  of  the  mortgage. 
Pennock  v.  Coe,  23  How.  117,  16  L.  Ed.  436;  Galveston,  etc.,  R.  R. 
Co.  V.  Cowdrev,  11  Wall.  459,  20  L.  Ed.  199;  Branch  v.  Jesup,  106 
U.  S.  478,  1  Sup.  Ct.  495,  27  L.  Ed.  279;  Thompson  v.  White  Water, 
etc.,  R.  R.  Co.,  132  U.  S.  68,  10  Sup.  Ct.  29,  33  L.  Ed.  256.  As  a  mat- 
ter of  course,  such  subsequently  acquired  real  estate  comes  under  the 
lien  of  the  mortgage  subject  to  such  limitations  as  are  imposed  upon 
it  when  acquired  by  the  mortgagor — in  other  words,  only  such  in- 
terest passes  as  passed  to  the  mortgagor — and  hence,  had  the  prop- 
erty conveyed  by  Thomas  Harmond  and  wife  to  the  Peninsula  Pure 
Water  Company  been  subject  to  a  lien  (for  purchase  money  or  other- 
wise) on  March  8,  1906,  when  it  was  acquired,  such  lien  would  have 
been,  preserved  as  against  any  claims  of  bondholders  or  trustee.  Of 
Biq.Pebs.Prop. — 24 


370  FIXTURES  (Ch.  5 

this  nature  were  the  facts  in  the  cases  of  Wood  v.  Holly  Mfg.  Co., 
100  Ala.  326,  13  South.  948,  46  Am.  St.  Rep.  56,  and  Holly  Mfg.  Co. 
V.  New  Chester  Water  Co.  (C.  C.)  48  Fed.  879,  cited  by  appellants. 
So  also  if  personal  property,  which  is  not  and  never  becomes  a  part 
of  the  freehold  mortgaged,  is  acquired  by  the  mortgagor  after  the  ex- 
ecution and  delivery  of  the  mortgage,  the  interest  of  the  mortgagor 
may  pass  under  the  after-acquired  property  clause  of  the  mortgage  if 
the  general  description  in  that  clause  will  cover  it,  but  it  must  pass 
burdened  by  whatever  restrictions  were  imposed  upon  it  in  respect  to 
the  mortgagor,  because  only  such  title  can  pass  to  the  trustee  as  was 
vested  in  the  mortgagor  through  whom  it  passed.  This  was  the  situa- 
tion in  New  Orleans,  etc.,  Ry.  Co.  v^.  United  States,  12  Wall.  (79  U.  S.) 
362,  20  L.  Ed.  434;  Fosdick  v.  Schall,  99  U.  S.  235,  25  L.  Ed.  339, 
and  Meyer  v.  Car  Co.,  102  U.  S.  1,  26  L.  Ed.  59,  cited  by  the  appel- 
lants, and  the  situation  is  readily  distinguishable  from  that  existing  in 
the  case  at  bar.  In  the  case  at  bar  the  structure  in  issue,  having  be- 
come affixed  to  a  part  of  the  freehold,  which,  at  the  time  it  was  so 
affixed,  was  subject  to  the  lien  of  the  mortgage  in  equity,  thereby  be- 
came (except  as  to  parties  to  the  contract),  a  part  of  the  real  estate, 
and,  by  operation  of  law,  became  subject  to  the  mortgage  without  re- 
gard to  any  agreement  between  the  mortgagor  and  the  person  furnish- 
ing or  erecting  such  property  or  structure.     *     *     * 

In  Hunt  V.  Bay  State  Iron  Company  and  Others,  97  Mass.  283,  the 
court  expressed  the  same  view,  saying:  "Nor  do  we  suppose  that  the 
mortgagor  in  possession  is  competent  to  bind  existing  mortgagees  by 
any  agreement  to  treat  as  personalty  annexations  to  the  freehold.  The 
legal  character  of  the  rails  when  once  laid  down  is  determined  by  the 
law  to  be  that  of  real  estate.  Mortgagees  as  well  as  all  other  parties 
in  interest  are  entitled  to  this  rule  of  law  which  can  be  taken  from 
them  only  by  their  own  waiver."     *     *     * 

We  think  the  rule  as  enunciated  by  all  these  cases  is  applicable  to 
the  case  at  bar,  and  that  there  was  no  error  in  the  decree  entered  by 
the  Circuit  Court  on  the  27th  day  of  January,  1910,  overruling  the 
exceptions  of  the  appellants  to  the  report  of  the  special  master  filed 
on  the  29th  day  of  September,  1909,  and  the  same  is  accordingly  af- 
firmed, with  costs.'* 

6  4  Contra,  Davis  v.  Bliss,  1S7  N.  Y.  77,  79  N.  E.  S51,  10  L.  R.  A.  (N.  S.)  458 
(1907). 

Ttie  result  of  the  principal  case  was  reached  without  the  after-acquired 
property  clause  in  Reynolds  v.  Ashby,  [19041  A,  C.  466 ;  Watertown  Steam 
Engine  Co.  v.  Davis,  5  Houst.  (Del.)  192  (1S77) ;  Fuller-Warren  Co.  v.  Harter, 
110  Wis.  SO,  85  N.  W.  698,  53  L.  R.  A.  003,  84  Am.  St.  Rep.  867  (1901).  See 
Ekstrom  v.  Hall,  90  Me.  186,  38  Atl.  106  (1897). 

0.  conditionally  sold  machinery  to  A.  A.  thereafter  executed  a  real  mort- 
gage to  B.  C.  later  installed  the  machinery.  A.  defaulted  in  his  payments  to 
O.  and  C.  removed  the  machinery.  Held,  B.  cannot  recover  from  C.  the  value 
of  the  machinery.    Gough  v.  Wood,  [1S94]  1  Q.  B.  713.     Otherwise,  where  the 


Sec.  3)  CONFLICTING   RIGHTS  371 


PECK-HAMMOND  CO.  v.  WALNUT  RIDGE  SCHOOL 

DISTRICT. 

(Supreme  Court  of  Arkansas,  1009.    93  Ark.  77,  123  S.  W.  771.) 

H.\RT,  J.  In  November,  1906,  the  board  of  directors  of  Walnut 
Ridge  Special  School  District  entered  into  a  contract  with  one  J.  L. 
Park  for  the  construction  of  a  school  house  in  the  town  of  Walnut 
Ridge.  The  plans  and  specifications,  which  were  a  part  of  the  con- 
tract, provided  for  the  installment  of  a  heating  plant.  Park  made  a 
contract  with  the  Peck-Hammond  Company,  of  Cincinnati,  O.,  to  fur- 
nish the  material  and  install  the  heating  apparatus.  The  contract  pro- 
vided that  the  title  to  the  material  furnished  should  remain  in  the  ven- 
dor until  paid  for.  The  heating  plant,  with  the  necessary  warm  air 
furnaces,  pipes,  flues,  registers,  facings,  etc.,  was  duly  erected  in  the 
school  house.  Park  failed  to  complete  the  building,  and  turned  it, 
with  the  heating  plant  which  had  been  installed  over  to  the  board  of 
directors  who  had  the  building  finished.  The  school  district  paid  out 
more  than  the  contract  price  to  erect  the  building.  They  knew  noth- 
ing of  the  terms  of  the  contract  between  Park  and  the  Peck-Hammond 
Company.  They  did  not  know  that  the  contract  for  the  heating  ap- 
paratus provided  that  the  title  to  the  property  should  remain  in  the 
vendor  until  paid  for.  Park  failed  to  pay  for  the  heating  apparatus, 
and  the  vendor  instituted  this  suit  in  replevin  to  recover  it. 

The  Peck-Hammond  Company  adduced  evidence  tending  to  show 
that  the  machinery  which  composed  the  heating  plant  could  be  re- 
moved, without  injury  to  the  school  building.  On  the  other  hand,  the 
school  district  adduced  evidence  tending  to  show  that  it  was  a  part 
of  the  building,  and  could  not  be  detached  without  defacing  and  other- 
wise injuring  the  building.  The  court  dismissed  the  complaint  against 
the  school  district,  and  the  plaintiff  has  appealed. 

We  think  the  judgment  was  right.  The  cases  cited  by  counsel  for 
appellant  are  cases  where  the  contract  reserving  title  in  the  chattels 
was  made  with  the  owner  of  the  land,  and  have  no  application  to  the 
facts  of  this  case.  Under  the  facts  as  disclosed  by  the  record  the  pres- 
ent case  is  ruled  by  the  principle  announced  in  Brannon  v.  Vaughan, 
66  Ark.  87,  48  S.  W.  909. 

The  heating  plant  was  installed  under  a  contract  with  Park  in  a 
building  on  land  belonging  to  the  school  district.    Appellant  knew  that 

real  mortgagee  took  possession  of  the  premises  before  the  conditional  vendor 
of  the  machinery  took  possession  of  it  for  nonpayment  of  the  price.  Reynolds 
V.  Ashliy,  [1904]  A.  C.  406;  or  where  the  mortgage  contains  a  stipulation  that 
the  mortgagor  shall  not  remove  any  fixtures  without  the  consent  of  the  mort- 
gagee, Ellis  V.  Glover,  [1908]  1  K.  B.  3SS. 

The  main  case  is  reported,  with  notes,  in  37  L.  R.  A.  (N.  S.)  119.  See, 
also,  15  Law.  Q.  Rev.  165. 


372  FIXTURES  (Ch.  5 

the  building  was  not  being  erected  for  occupancy  by  Park,  but  that 
it  was  built  for  use  as  a  school  house,  and  that  the  installation  of  a 
heating  plant  was  a  necessary  adjunct  to  the  building. 

The  board  of  directors  were  not  parties  to  the  contract  between  ap- 
pellant and  Park,  and  had  no  knowledge  of  the  conditions  thereof. 
Under  such  a  state  of  facts,  there  is  a  necessary  inference  that  the 
heating  plant  was  affixed  permanently  to  the  structure,  and  a  conclu- 
sive presumption  that  it  should  become  a  part  of  the  realty. 

Judgment  afHrmed.** 


LONDON  &  WESTMINSTER  LOAN  &  DISCOUNT  CO. 

V.  DRAKE. 

(Common  Pleas,  1859.    6  C.  B.  N.  S.  79S.) 

The  first  count  of  the  declaration  was  trover  for  goods ;  the  second 
was  for  wrongfully  depriving  the  plaintiffs  of  the  use  and  possession 
of  divers  goods  and  fixtures  of  the  plaintiffs  in  and  affixed  and  fasten- 
ed to  a  certain  dwelling  house  and  premises  in  St.  Mary  Axe;  and 
the  third  was  for  seizing  and  taking  certain  goods  and  fixtures  of  the 
plaintiffs  in  and  affixed  and  fastened  to  the  said  house  and  premises 
in  the  said  second  count  mentioned. 

The  defendant  pleaded  not  guilty,  and  a  traverse  that  the  several 
goods  and  fixtures  in  the  several  counts  mentioned  were  the  goods  and 
fixtures  of  the  plaintiffs.     Issue  thereon. 

The  cause  was  tried  before  Crowder,  J.,  at  the  sittings  in  London 
after  last  Trinity  Term,  when  the  following  facts  appeared  in  evi- 
dence :  One  Robinson  who  was  tenant  of  the  premises  in  question  (an 
eating-house  in  St.  Mary  Axe)  under  a  lease  of  which  seven  years 

65  Ace.:  AUis-Chaluiers  Co.  v.  City  of  Atlantic,  1C4  Iowa,  8,  144  N.  W. 
,346,  52  L.  R.  A.  (N.  S.)  561,  Ann.  Cas.  1916D,  910  (1914) ;  Jacobs  v.  Feinstoin, 
133  App.  Div.  416,  117  N.  Y.  Supp.  823  (1909). 

Mllicie's  assignor  conditionally  sold  articles  to  Sielke  &  Co.,  knowing  that 
they  were  to  install  them  in  defendant's  store.  Milicie,  not  being  paid,  at- 
tenipted  to  replevy  the  articles.  Tlie  court  said:  "In  the  view  taken  of  the 
case  it  is  not  necessary  to  decide  whether  the  defendant  had  notice,  actual 
or  constructive,  before  he  paid  Sielke  &  Co.,  of  the  clause  in  the  contract  of 
the  plaintiff's  assignor  with  them  that  title  should  not  pass  to  them  until 
payment  of  the  contract  price.  If  he  had,  it  would  make  no  difference.  He 
[plaintiff's  assignor]  knew  that  title  was  to  pass  from  them  to  the  defend- 
ant under  their  contract  at  once,  in  order  that  they  might  fulfill  their  con- 
tract and  be  paid  therefor,  and  delivered  the  chattels  to  enable  that  to  take 
place.  For  him  to  retain  a  lien  on  or  ownership  of  the  chattels  woubl  be 
antagonistic  to  this  main  purpose,  they  could  not  exist  together."  Milicie  v. 
Pearson,  110  App.  Div.  770,  772.  97  N.  Y.  Supp.  431  (1900). 

As  to  the  rights  of  the  conditional  vendor,  when  he  has  no  reason  to  be- 
lieve that  the  vendee  intends  to  annex  to  the  land  of  another,  see  Jermyn  v. 
Schweppenhauser,  33  Misc.  Rep.  603,  OS  N.  Y.  Supp.  153  (1901). 


Sec.  3)  CONFLICTING    RIGHTS  373 

were  unexpired,  on  the  4th  of  September,  1857,  borrowed  a  sum  of 
money  of  the  plaintiffs  giving  them  by  way  of  collateral  security  a  bill 
of  sale  upon  all  his  furniture  and  effects  upon  the  premises,  including 
certain  tenant's  fixtures.  The  bill  of  sale  contained  an  absolute  as- 
signment of  all  the  goods  and  effects  therein  comprised,  subject  to  a 
proviso  making  the  same  void  if  Robinson  should  repay  the  money 
borrowed  by  certain  instalments;  and  also  an  agreement  that,  in  case 
default  should  be  made  in  payment  of  the  money,  or  if,  amongst  other 
things,  the  said  goods  and  effects  should  be  distrained  for  rent,  it 
should  be  lawful  for  the  plaintiffs  to  enter  into  and  upon  the  prem- 
ises, or  wherever  else  the  said  goods  and  effects  should  be,  and  to 
receive  and  take  into  their  possession  and  thenceforth  to  hold  to  the 
same,  etc.  Default  having  been  made  by  Robinson,  the  plaintiffs,  by 
one  Priest,  on  the  30th  of  March,  1858,  entered  upon  the  premises 
for  the  purpose  of  making  a  seizure,  but  found  that  the  landlord  had 
already  distrained  for  arrears  of  rent,  and  that  his  broker  was  in  pos- 
session. Priest,  however,  claiming  the  fixtures,  left  a  man  also  in  pos- 
session ;    but  the  fixtures  were  not  severed. 

On  the  8th  of  March,  1858,  Robinson  had  given  his  landlord  an  au- 
thority to  distrain  the  fixtures ;  and  on  the  5th  of  April  he  made  a 
formal  surrender  of  the  term  to  him.  A  fresh  lease  was  afterwards 
granted  by  the  landlord  to  Drake — the  tenant's  fixtures  which  had 
formerly  belonged  to  Robinson  still  remaining  upon  the  premises  un- 
severed  from  the  freehold.  Tlie  plaintiffs  made  a  formal  demand  of 
the  fixtures  upon  the  defendant,  who  declined  to  give  them  up,  say- 
ing that  he  had  purchased  them  from  Robinson. 

Upon  these  facts  being  proved,  the  learned  judge  directed  a  verdict 
to  be  entered  for  the  defendant,  reserving  leave  to  the  plaintiffs  to  move 
to  enter  a  verdict  for  them  for  £23.  2s.,  if  the  court  should  be  of  opin- 
ion that  they  were  under  the  circumstances  entitled  to  recover  in  re- 
spect of  the  fixtures. 

WiLLi.AMS,  J.  The  question  in  this  case  is,  whether,  if  a  lessee 
mortgages  tenants'  fixtures,  and  afterwards  surrenders  his  lease,  the 
mortgagee  has  a  right  to  enter  and  sever  them. 

The  principles  of  law  applicable  to  this  point  are  well  settled ;  the 
difficulty  lies  in  the  application  of  them.  It  is  fully  established  that 
the  right  of  the  lessee  to  remove  fixtures  continues  only  during  the 
term,  and  during  such  further  period  of  possession  by  him  as  he  holds 
under  a  right  still  to  consider  himself  as  tenant :  and  it  is  plain  that 
the  right  of  his  assignee  can  extend  no  further.  On  the  other  hand, 
it  is  laid  down,  as  to  a  surrender,  in  Co.  Litt.  338,  b.,  that,  "having  re- 
gard to  strangers  who  were  not  parties  or  privies  thereto  (lest  by  a 
voluntary  surrender  they  may  receive  prejudice  touching  any  right  or 
interest  they  had  before  the  surrender)  the  estate  surrendered  hath 
in  consideration  of  law  a  continuance."     This  doctrine  has  been  fully 


374  FIXTURES  (Ch.  5 

adopted  and  acted  on  in  modern  cases — as,  in  Pleasant  v.  Benson,  14 
East,  234;  Doe  d.  Beadon  v.  Pyke,  5  M.  &  Selw.  146;  Pike  v.  Eyre, 
9  B.  &  C.  909,  4  M.  &  R.  661. 

The  question  is  thus  reduced  to  the  inquiry  whether  the  mort- 
gagee's right  to  sever  the  fixtures  from  the  freehold  is  a  "riglit  or 
interest"  within  the  meaning  of  this  rule  of  law.  And  we  are  of  opin- 
ion that  it  is.  Certainly  it  is  an  interest  of  a  peculiar  nature,  in  many 
respects  rather  partaking  of  the  character  of  a  chattel  than  of  an  in- 
terest in  real  estate.  But  we  think  that  it  is  so  far  connected  with  the 
land  that  it  may  be  considered  a  right  or  interest  in  it,  which  if  the 
tenant  grants  away,  he  shall  not  be  allowed  to  defeat  his  grant  by  a 
subsequent  voluntary  act  of  surrender. 

We  are,  therefore,  of  opinion  that  the  plaintiffs  may  maintain  an  ac- 
tion against  the  defendant  for  preventing  them  from  exercising  their 
right  to  sever,  and  may  in  such  action  recover  the  value  of  the  fixtures 
as  severed. 

Rule  absolute.^' 


SANDERS  V.  DAVIS. 
(Queen's  Bench  Division,  1SS5.     L.  R.  15  Q.  B.  Div.  218.) 

Special  case,  from  which  the  following  facts  appeared : 

By  an  indenture  of  mortgage  dated  the  1st  of  May,  1878,  made  be- 
tween Henry  Bennett  of  the  one  part,  and  the  defendant  of  the  other 
part,  a  messuage  therein  described  was  granted  and  released  by  the  said 
Henry  Bennett  to  the  defendant,  to  secure  repayment  of  £500.  with  in- 
terest at  5  per  cent,  per  annum. 

The  premises  were  then  occupied  by  one  Snuth,  as  tenant,  who  car- 
ried on  therein  the  trade  of  a  grocer,  and  had  placed  on  the  ground 
floor  the  ordinary  fixtures  used  by  grocers.  In  September,  1881, 
Snuth  determined  his  tenancy  and  removed  his  fixtures. 

In  September,  1881,  Henry  Bennett,  the  mortgagor,  died,  and  the 
equity  of  redemption  passed  by  his  will,  and  ultimately  by  sales  and 
various  mesne  assignments  became  vested  in  six  different  persons  as 
tenants  in  common.  These  tenants  in  common  had  entered  into  no 
covenant  to  pay  the  mortgage  debt  of  £500. 

In  March,  1883,  James  Hunt  became  yearly  tenant  of  the  premises 
to  the  six  tenants  in  common,  and,  on  entering  into  possession,  placed 
in  the  shop  certain  counters,  shelves,  partitions  of  wood,  and  glass 
gas  pipes  and  burners,  bells,  and  window  blinds  for  the  purpose  of 
carrying  on  the  trade  of  a  draper  and  haberdasher. 

86  Contra,  on  the  ground  that  the  lessor  accepted  the  surrender.  In  Ignorance 
of  the  rights  of  an  attacliing  creditor.    Thropp's  Appeal,  70  Pa.  395  (1872). 


Sec.  3)  CONFLICTING   EIGHTS  375 

In  June,  1883,  James  Hunt  bought  an  undivided  sixth  part  or  share 
of  the  premises  from  one  of  the  tenants  in  common,  and  the  undivided 
sixth  part  or  share  was  conveyed  to  Hunt,  subject  as  to  the  entirety 
to  the  mortgage  for  £500.,  but  he  entered  into  no  covenant  for  pay- 
ment off  of  the  mortgage  debt. 

In  August,  1883,  Hunt  mortgaged  in  fee  the  undivided  sixth  part 
of  the  equity  of  redemption,  together  with  the  fixtures  then  in  and 
upon  the  premises,  to  the  plaintiff. 

The  defendant  never  recognized  or  adopted  the  tenancy  of  Hunt, 
and  in  July,  1884,  under  the  power  of  sale  contained  in  his  mortgage 
deed,  he  sold  and  conveyed  the  premises  to  a  purchaser  together  with 
the  trade  fixtures  placed  in  the  shop  by  Hunt  in  March,  1883. 

It  was  admitted  that  the  fixtures  as  between  all  parties  should  be 
taken  at  £100.;  that  they  were  trade  fixtures;  that  they  could  be 
moved  without  injury  to  the  fee;  that  the  plaintiff  demanded  them 
from  the  defendant  before  the  sale  and  before  Hunt  gave  up  posses- 
sion of  the  premises,  and  that  the  sale  of  the  fee  and  the  fixtures  only 
realised  enough  to  satisfy  the  mortgage  to  the  defendant. 

The  question  for  the  opinion  of  the  Court  was  whether  the  plain- 
tiff was  entitled  under  the  circumstances  to  recover  the  value  of  the 
fixtures. 

Pollock,  B.°^  I  have  no  doubt  the  plaintiff  is  entitled  to  judg- 
ment. Between  the  mortgagor  and  mortgagee  no  doubt,  unless  there 
is  some  express  reservation,  all  that  is  on  the  land  fixed  to  the  free- 
hold, passes  under  a  mortgage  of  the  freehold  to  the  mortgagee.  That 
was  the  only  point  decided  in  Meux  v.  Jacobs,  L.  R.  7  H.  L.  481. 
The  question  of  the  right  of  a  tenant  was  not  raised.  *  *  *  The 
present  case  is  quite  different,  and  does  not  depend  merelv  on  the 
position  and  relation  of  the  parties,  but  on  the  character  of  the  things. 
In  Lawton  v.  Salmon,  note  to  Fitzherbert  v.  Shaw,  1  H.  Bl.  258,  Lord 
Mansfield  said,  "All  the  old  cases,  some  of  which  agree  in  the  Year 
Books  and  Brooke's  Abridgment,  agree,  that  whatever  is  connected 
with  the  freehold,  as  wainscot,  furnaces,  pictures  fixed  to  the  wainscot, 
even  though  put  up  by  the  tenant,  belong  to  the  heir.  But  there  has 
been  a  relaxation  of  the  strict  rule  in  that  species  of  cases,  for  the 
benefit  of  trade,  between  landlord  and  tenant,  that  many  things  may 
now  be  taken  away  which  could  not  be  formerly,  such  as  erections  for 
carrying  on  any  trade,  marble  chimney  pieces,  and  the  like,  when  put 
up  by  the  tenant."  The  case  we  have  to  consider  is  one  in  which  the 
goods  are  not  strictly  speaking  the  propertj'  of  a  tenant,  but  belong  to 
some  one  who  has  come  in  under  an  agreement  of  tenancy  with  the 
mortgagor  of  the  premises,  and  not  under  any  agreement  with  the 
mortgagee.  Hunt,  when  he  entered  on  the  premises,  believed  he  was 
entitled  to  consider  himself  the  tenant,  and,  in  my  opinion,  whatever 

"  Part  of  tbe  opinion  of  Pollock,  B.,  is  omitted. 


376  FIXTURES  (Ch.  5 

he  brought  on  as  trade  fixtures  comes  within  the  spirit  of  the  rule  laid 
down  by  Lord  Mansfield,  and  adopted  in  many  other  cases.  I  think, 
therefore,  that  Hunt  would  have  been  entitled  to  remove  these  fixtures 
and  that  consequently  the  plaintilt  is  entitled  to  judgment. 

Manisty,  J.  I  am  of  the  same  opinion.  When  the  mortgage  was 
executed  in  May,  1878,  the  premises  were  in  the  occupation  of  a  ten- 
ant, and  at  the  expiration  of  his  tenancy  he  had  a  right  to  remove  and 
did  remove,  his  trade  fixtures.  The  mortgagee  after  this  allowed  the 
mortgagor  to  remain  in  possession  and  deal  with  the  property.  Now  if 
the  defendant  had  taken  possession  and  let  to  Hunt,  and  Hunt  had 
brought  trade  fixtures  on  to  the  premises,  he  would  have  been  entitled 
to  remove  them  when  his  tenancy  terminated.  I  cannot  see  why  a 
mortgagee  should  be  in  a  better  position  in  this  respect  when  he  per- 
mits the  mortgagor  -to  deal  with  the  property  and  let  in  a  tenant.  I 
think  he  must  be  taken  to  have  known  of  the  letting  to  Hunt,  and  to 
have  acquiesced  in  it,  and  consequently  he  would  not  have  been  able 
to  prevent  Hunt  from  removing  the  fixtures.  There  must,  therefore, 
be  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff."* 


MASSACHUSETTS  NAT.  BANK  et  al.  v.  SHINN  et  al. 

(Appellate  Division  of  the  Supreme  Court  of  New  York,  1S97.     18  App.  Div. 
276,  46  N.  Y.  Supp.  329.) 

[October  21,  1890,  one  Butler  leased  mining  property  to  Collins, 
who  assigned  the  lease  to  Shinn.  Shinn  bought  mining  machinery 
from  a  mill  company,  and  on  April  20,  1892,  gave  the  company  a  chat- 
tel mortgage  thereon  to  secure  the  price ;  the  mortgage  was  given  after 
all  the  machinery,  except  two  rolls,  was  installed.  The  mortgage  was 
duly  recorded  as  a  chattel  mortgage.  The  lessee  failed  to  pay  rent  due 
after  December  1,  1892,  and  about  June  15,  1893,  the  lessor  obtained 
possession  by  summary  proceedings.  The  mortgage  was  assigned  to 
the  plaintiff,  and  it  on  October  18,  1893,  began  foreclosure  proceedings. 
Butler  claimed  the  property  as  belonging  to  him.  Case  heard  by  a 
referee.    Judgment  in  favor  of  Butler;  the  bank  appeals.] 

BartlETT,  J.°°  *  *  *  As  between  landlord  and  tenant,  the 
placing  of  machinery  or  other  appliances  by  the  tenant  upon  the  leased 
premises,  for  the  purpose  of  trade  or  manufacture  to  be  carried  on  by 

68  Ace.:   Belvin  v.  Ealeigli  Paper  Co.,  123  N.  C.  138.  31  S.  E.  655  (1898). 

A.  leased  to  B.  "all  additions  except  movable  fixtures  to  be  the  property 
of  tbe  lessor."  B.  added  trade  fixtures,  mortgaging  them  to  C.  Held,  A.  can 
retain  them  as  against  C.  Excelsior  Brewing  Co.  v.  Smith,  12.5  App.  Div.  668, 
110  N.  Y.  Supp.  8  (1908).    Compare  Lanphere  v.  Lowe,  3  Xeb.  131  (1873). 

88  Parts  of  the  opinions  of  Bartlett  and  Goodrich,  JJ.,  are  omitted. 


Sec.  3)  CONFLICTING    RIGHTS  H77 

the  tenant,  does  not  make  the  property  so  affixed  a  part  of  the  free- 
hold, but  it  still  remains  personalty,  to  such  an  extent  at  least  that  the 
tenant  retains  the  right  to  remove  it.  Ombony  v.  Jones,  19  N.  Y.  234 ; 
Tifft  V.  Horton,  53  N.  Y.  Zll ,  382,  13  Am.  Rep.  537 ;  Lewis  v.  Ocean 
Navigation  &  Pier  Co.,  125  N.  Y.  341,  346,  26  N.  E.  301.  The  trade 
fixtures  of  a  tenant,  in  other  words,  remain  personal  property  in  the 
eye  of  the  law,  so  far  as  the  right  of  removal  is  concerned.  2  Taylor's 
Landl.  &  Ten.  (8th  Ed.)  §  549.  The  correctness  of  this  proposition  is 
not  disputed,  but  the  referee  holds  that  the  presumption  to  which  it 
would  naturally  give  rise  "in  favor  of  the  removal  of  these  buildings 
and  machinery  erected  for  the  purposes  of  trade  is  absolutely  preclud- 
ed by  the  terms  of  the  lease  and  the  subsequent  transactions,  all  of 
which  taken  together  show  the  object  of  the  annexation  and  express 
the  intention  of  the  parties."  He  concludes  that  this  intention  was  to 
affix  the  entire  mining  plant  to  the  land,  as  it  should  be  placed  thereon, 
absolutely  and  once  for  all.  I  do  not  so  construe  tlie  lease.  *  *  * 
[The  learned  judge  discussed  various  clauses  in  the  lease.] 

For  these  reasons  I  am  satisfied  that  the  defendant  George  B.  Butler 
had  not  become  the  owner  of  the  mortgaged  property  at  the  time  the 
chattel  mortgage  was  given.  Shinn  possessed  rights  in  respect  to  it 
which  it  was  competent  for  him  to  transfer  by  the  mortgage  to  the 
Sturtevant  Mill  Company,  and  the  question  next  to  be  considered  is 
what  is  the  extent  of  those  rights. 

At  that  time  there  had  been  no  default  on  the  part  of  the  lessees,  and 
Shinn  still  had  the  right  to  cancel  and  surrender  the  lease  under  the 
fourth  article  thereof,  which  provided  that  the  lessee  might  do  so  at 
any  time  within  two  years  from  its  date  if  not  satisfied  that  the  ore 
could  be  mined  economically.  Hence,  it  is  argued  in  behalf  of  the 
plaintiffs,  who  have  succeeded  to  the  interest  of  the  Sturtevant  Mill 
Company  as  mortgagees,  that  the  chattel  mortgage  given  by  Shinn  at 
this  time  to  secure  the  balance  of  the  purchase  price  for  the  machinery 
was  good  and  valid,  and  that  no  subsequent  default  on  his  part  could 
vitiate  the  rights  of  the  Sturtevant  Mill  Company  or  its  assignees  to 
collect  out  of  the  proceeds  of  said  machinery  the  balance  due  on  ac- 
count of  the  purchase  price  thereof. 

But  this  argument  proceeds  in  disregard  of  the  proposition  that  the 
rights  of  the  mortgagee  of  the  tenant's  trade  fixtures  are  to  be  meas- 
ured by  the  rights  of  the  tenant  himself  in  respect  to  such  fixtures.  Al- 
though the  tenant  possessed  the  right  of  removal,  he  was  bound  to  ex- 
ercise it,  if  at  all,  before  his  term  expired,  or  within  the  period  limited 
by  his  lease,  or  at  all  events  before  quitting  possession  of  the  real  es- 
tate upon  which  the  trade  fixtures  were  situated.  Brooks  v.  Galster, 
51  Barb.  196.  Where  the  tenant  has  mortgaged  such  trade  fixtures, 
after  placing  them  upon  the  leased  land,  and  fails  to  remove  them  with- 
in the  term  or  the  period  prescribed  by  his  lease,  or  while  he  retains 


378  FIXTURES  .  (Ch.  5 

possession  of  the  land  upon  which  they  are  located,  his  title  becomes 
subordinate  to  that  of  the  lessor  and  his  right  of  removal  is  lost. 
*  *  *  So,  in  the  case,  at  bar,  at  the  time  the  chattel  mortgage  was 
made  and  ever  since,  the  defendant  Butler  had  and  has  had  the  in- 
choate right  to  claim  the  mortgaged  fixtures  as  part  of  the  freehold,  if 
not  seasonably  disannexed.  The  mortgagee  acquired  the  right  to  de- 
tach and  remove  them  under  the  same  circumstances  as  would  have 
warranted  their  detachment  and  removal  by  the  mortgagor.  But  nei- 
ther the  mortgagee  nor  its  assignees  ever  sought  or  attempted  their  re- 
moval, until  subsequent  to  a  time  when  all  right  of  removal  on  the 
part  of  the  lessee  or  his  representatives  had  absolutely  ceased  and  de- 
termined. The  suit  to  foreclose  the  mortgage  was  not  commenced  un- 
til nearly  four  months  after  the  summary  proceedings  had  put  the 
landlord  in  possession  of  the  leased  premises  to  which  the  trade  fix- 
tures were  attached.  At  this  time,  in  any  view  of  the  case,  the  tenant's 
right  to  remove  them  had  terminated,  and  the  mortgagee  could  enforce 
no  other  or  better  right. 

There  is  nothing  adverse  to  this  view  in  Lewis  v.  Ocean  Navigation 
&  Pier  Co.,  supra,  which  the  appellant  cites  in  support  of  his  proposi- 
tion that  a  landlord  cannot  destroy  the  tenant's  right  to  remove  trade 
fixtures  by  dispossessing  the  tenant  for  non-payment  of  rent.  In  that 
case  the  tenant,  who  held  over  after  the  expiration  of  his  lease,  claimed 
the  right  to  remove  his  building  at  the  time  of  his  ejection  by  virtue  of 
the  summary  proceedings,  but  was  not  permitted  to  remove  it.  His 
claim  was  seasonably  made,  while  still  in  possession  of  the  leased  prem- 
ises upon  which  the  building  stood.  In  this  respect  the  case  seems 
clearly  distinguishable  in  principle  from  the  case  at  bar,  where  the 
term  of  the  tenant  ended  by  reason  of  his  default  in  the  payment  of  the 
rent,  and  where  he  was  also  deprived  of  the  possession  of  the  leased 
premises  without  any  claim  being  made  on  his  behalf,  or  that  of  his 
mortgagees,  that  they  were  entitled  to  remove  the  machinery  in  ques- 
tion or  even  desired  to  do  so.     *     *     * 

.\11  concurred,  except  Goodrich,  P.  J.,  dissenting. 

Goodrich,  P.  J.  (dissenting).  *  *  *  jj-  niust  be  remembered 
that  before  some  of  the  property  had  been  delivered,  viz.,  the  two 
crushing  rollers,  the  mortgage  was  executed ;  and  it  included  the  rol- 
lers. This  mortgage  was  duly  filed  on  April  23,  1893,  and  it  is  at  this 
date  that  the  rights  of  the  mortgagee  became  crystallized.  If  the  title 
to  this  property  at  that  time  had  vested  in  the  lessor  by  the  terms  of 
the  mining  lease,  the  lessee  had  no  right  to  execute  a  mortgage  except 
in  subordination  to  the  rights  of  the  lessor,  and  there  would  be  no 
question  that  the  entire  decision  of  the  referee  was  correct.  If,  on  the 
other  hand,  the  title  to  the  property  was  in  the  lessee,  it  passed  from 
him  to  the  mortgagee  and  his  rights  cannot  be  affected  by  any  subse- 
quent action  or  sufferance  of  the  lessee.    The  filing  of  the  chattel  mort- 


Sec.  3)  CONFLICTING   RIGHTS  379 

gage  gave  notice  to  the  lessor  that  the  mortgage  had  been  made,  and  he 
was  bound  to  know  its  effects,  and  all  his  subsequent  proceedings  are 
colored  with  that  knowledge.  That  effect  was  to  transfer  the  title  to 
the  mortgagee,  subject  only  to  defeasance  upon  the  payment  of  the 
notes  to  secure  which  it  was  given.  Hall  v.  Sampson,  35  N.  Y.  274, 
91  Am.  Dec.  56.  When  default  occurred  in  the  payments  of  the  notes, 
the  title  in  the  mortgagee  became  absolute,  subject  only  to  the  right  of 
the  mortgagor  to  bring  his  action  in  equity  to  redeem  upon  payment  of 
notes,  interest  and  expenses ;  but  otherwise  the  rights  of  the  mortgagee 
had  become  fixed  and  he  was  the  absolute  and  legal  owner  of  the  prop- 
erty;   the  title  of  the  mortgagor  was  extinguished.     *     *     * 

Of  course,  it  goes  without  saying  that  the  mortgagee  could  acquire 
no  greater  rights  than  the  lessee  had  or  could  convey;  but  whatever 
these  rights  were,  he  acquired  them,  and  this  at  the  time  of  the  default. 
At  this  time  tlie  lessee  was  the  owner  of  the  property  which,  as  Mr. 
Justice  Bartlett  holds,  was  then  personalty  and  not  realty,  and  the  les- 
sor had  no  title  whatever  thereto,  and  no  right  of  possession.  His  rent 
had  been  paid,  not  only  up  to  that  time,  but  it  continued  to  be  paid  for 
nearly  a  year  afterwards.  The  landlord  could  not  have  taken  posses- 
sion of  the  property  during  the  year,  for  he  was  not  the  owner  of  it, 
and  there  was  no  default  in  the  payment  of  rent  for  which  summarj' 
proceedings  to  dispossess  could  be  instituted.  *  *  *  [The  learned 
judge  discussed  London,  etc.,  Co.  v.  Drake,  ante,  p.  372.] 

The  plaintiff  being  absolute  owner  of  the  property  no  subsequent  ac- 
tion of  the  lessor  or  lessee  can  defeat  his  rights;  neither  laches,  nor 
contract,  nor  delay,  nor  summary  proceedings  to  dispossess  under  the 
provisions  of  the  lease.  The  lessor  is  met  by  a  new  title  owner,  and  his 
right  to  dispossess  can  be  contested,  not  only  by  the  original  lessee  but 
by  his  mortgagee,  who  had  succeeded  to  his  rights  as  they  existed  at 
that  time. 

If  it  be  said  that  the  rights  of  the  lessor  are  derived  from  the  lease, 
and  that  the  lease  is  paramount  to  the  rights  acquired  subsequently  by 
the  mortgagee,  and  that  while  the  tenant  may  remove  the  property 
during  his  term,  he  cannot  do  so  after  his  term,  there  seem  to  be  two 
answers  to  the  proposition :  First,  the  lease  was  entitled  to  be  and  was 
recorded  as  of  real  estate.  It  was  not  filed  as  a  contract  relating  to 
chattels.  It  conveyed  no  interest  in  the  chattels,  for  such  Mr.  Justice 
Bartlett  concludes  them  to  be.  There  was,  therefore,  no  construc- 
tive notice  of  the  existence  of  the  lease  to  the  mortgagee  and  no  actual 
notice  is  shown  in  the  evidence,  although  I  do  not  mean  to  intimate 
that  notice  would  make  any  difference  in  the  rights  of  the  plaintiff. 
Second,  the  paramount  rights  of  the  lessor  relate  only  to  the  lessee  and 
not  to  a  stranger  who  has  acquired  a  good  title  under  him  while  he 
had  a  right  to  convey.     *     *     * 


380  FIXTURES  (Ch. 


A  different  rule  prevails  between  the  lessor  and  lessee  when  there 
is  no  mortgage ;  there  the  right  of  the  leasee  to  remove  during  his  ten- 
ancy is  a  privilege  which  he  may  forfeit  by  delay,  but  that  does  not 
affect  the  right  of  a  mortgagee,  who  stands  in  a  very  different  relation. 
True,  he  has  the  right  to  remove  the  goods  to  which  he  has  title,  on  the 
default  of  the  mortgagor ;  but  he  may  also  leave  the  property  on  the 
premises  with  the  assent  of  the  mortgagor,  and  his  leaving  it  there 
cannot  affect  his  rights,  as  there  is  no  principle  of  estoppel  in  favor  of 
the  lessor. 

It  is  undoubtedly  true  that  where  a  tenant  suffers  default  in  payment 
of  rent  and  is  dispossessed,  he  loses  his  right  to  remove  certain  articles 
on  the  ground  that  they  are  to  be  deemed  fixtures;  but  this  right  of 
removal  is  a  personal  privilege,  and  its  loss  a  personal  one,  and  the  re- 
sults of  his  failure  to  remove  cannot  be  extended  to  destroy  the  rights 
of  a  third  person,  which  are  in  no  sense  dependent  on  a  personal  privi- 

Judgment  affirmed.'" 

70  Affirmed  163  N.  Y.  360,  57  N.  E.  611  (1900). 

Ace:   Talbot  v.  Whipple,  14  Allen  (Muss.)  177  (1867). 

The  lessor  entering  for  breach  of  condition  wins  as  against  an  assignee 
for  the  benefit  of  creditors  who  has  not  removed  the  fixtures  prior  to  the 
lessor's  entry.  Tugh  v.  Arton,  L.  K.  8  Kq.  626  (1S69) ;  .see  Potter  v.  Gilbert, 
177  Pa.  159,  35  Atl.  597,  35  L.  R.  A.  580  (1896) ;  or  as  against  an  attaching 
creditor  of  the  lessee,  More.v  v.  Hoyt,  02  Conn.  5^12,  20  Atl.  127,  19  L.  R.  A. 
611  (1893) ;  or  as  against  one  claiming  under  a  mechanic's  lien  on  the  les- 
see's interest,  Williams  v.  Vanderbilt,  145  111.  238,  34  N.  E.  476,  21  L.  R.  A. 
489.  36  Am.  St.  Rep.  486  (1893). 

It  has  been  held  in  some  jurisdictions  that  the  lessee  has  a  .reasonable 
time  within  which  to  remove  fixtures  after  a  forfeiture  by  the  lessor  for  a 
breach  by  the  lessee.  Mickle  v.  Douglas,  75  Iowa,  78,  39 'n.  W.  19S  (18S8) ; 
Gartland  v.  Hickman,  56  W.  Va.  75,  49  S.  E.  14,  67  L.  R.  A.  694  (1904) ;  Bergh 
V.  Ilerring-Hall-Marvin  Safe  Co.,  136  Fed.  368,  69  C.  C.  A.  212,  70  L.  R.  A. 
7.5C  (1905). 

"When  Caroline  Tappe  became  the  assignee  of  the  leasehold  interest  by 
virtue  of  its  conveyance  to  her  in  the  deed  of  mortgage,  she  took  it  subject 
to  all  the  conditions  and  covenants  of  the  lease  to  George  Feller.  Her  failure 
to  pay  the  rent  and  to  keep  the  taxes  paid  up,  was  equally  a  default  in  her 
as  in  the  original  lessee."    Abrahams  v.  Tappe  et  al.,  60  Md.  317,  322  (1883). 


Ch.  6)  EMBLEMENTS  381 

CHAPTER  VI 
EMBLEMENTS 


TRIPP  V.  HASCEIG. 

(Supreme  Court  of  Michigan,  1870.     20  Mich.  254,  4  Am.  Rep.  388.) 

Graves,  J.^  The  plaintiff  in  error  sued  Hasceig  for  the  alleged  con- 
version of  a  quantity  of  standing  corn,  which  Tripp  claimed  as  his 
property,  and  upon  the  trial  a  verdict  passed  for  Hasceig.  Tripp  now 
brings  error  and  insists  that  the  Circuit  Judge  erred  in  charging  the 
jury,  and  he  asks  that  the  judgment  be  reversed  therefor. 

The  evidence  conduced  to  show  that  Tripp,  being  the  owner  of  a 
farm  in  Kalamazoo  county,  on  which  he  resided  and  on  which  he  had 
raised  a  field  of  corn  in  the  season  of  1865,  conveyed  the  farm  to  de- 
fendant about  the  13th  of  December,  in  the  same  year,  by  warranty 
deed,  while  the  corn  was  still  standing,  unsevered,  where  it  grew,  and 
without  inserting  in  the  deed  any  exception  or  reservation ;  and  that 
Hasceig  took  and  appropriated  a  part  of  the  crop  as  properly  conveyed 
to  him  by  the  deed.  It  was  claimed  by  Tripp  on  the  trial  that  the  crop, 
being  over  ripe  when  the  deed  was  given,  did  not  pass  by  the  convey- 
ance, but  the  Circuit  Judge  advised  the  jury  that  the  corn,  though  ripe 
and  no  longer  deriving  nourishment  from  the  ground,  would,  if  still 
attached  to  the  soil,  pass  by  conveyance  of  the  land;  and  this  is  one  of 
the  rulings  complained  of. 

We  think  this  instruction  was  right,  and  we  concur  in  the  suggestion 
of  the  Circuit  Judge,  that  whether  the  corn  would  pass  or  not,  could  no 
more  depend  upon  its  maturity  or  immaturity,  than  the  passage  of  a 
standing  forest  tree  by  the  conveyance  of  the  land,  would  depend  upon 
whether  the  tree  was  living  or  dead. 

It  is  true  that  the  authorities  in  alluding  to  this  subject  very  generally 
use  the  words  growing  crops,  as  those  embraced  by  a  conveyance  of 
the  land,  but  this  expression  appears  to  have  been  commonly  employed 
to  distinguish  crops  still  attached  to  the  ground,  rather  dian  to  mark 
any  distinction  between  ripe  and  unripe  crops. 

In  some  cases,  where  the  question  has  been  raised  under  the  statute 
of  frauds,  as  to  the  validity  of  verbal  sales  of  unsevered  crops,  a  dis- 

1  The  statL'Uieut  of  tacts  aud  part  of  the  opiiiiou  of  Graves,  J.,  are  omittoil. 


382  EMBLEMENTS  (Ch.  0 

tinction  has  been  drawn  between  such  as  were  fit  for  harvest,  and  such 
as  were  not,  upon  the  supposition  that  the  former  would  not  be  within 
the  statute,  while  the  latter  would  be  embraced  by  it.  See  cases  refer- 
red to  in  Austin  v.  Sawyer,  9  Cow.  39.  In  Austin  v.  Sawyer,  however, 
Chief  Justice  Savage  seems  to  have  rejected  the  distinction,  as  he  held 
that  a  verbal  sale  of  growing  crops  was  valid  in  New  York. 

But  one  case  has  been  cited,  or  is  remembered,  in  which  it  has  been 
intimated  that  a  mature  and  unsevered  crop,  would,  because  of  its  be- 
ing ripe,  remain  in  the  grantor  of  the  land,  on  an  absolute  conveyance 
of  the  premises  without  exception  or  reservation;  and  that  is  the  case 
of  Powell  V.  Rich,  41  111.  -+66,  and  the  point  was  not  essential  to  the  de- 
cision there. 

There  are  many  authorities,  however,  opposed  to  the  distinction  sug- 
gested in  that  case.  2  Bl.  Com.  122,  note  3 ;  Broom's  Maxims,  354, 
margin. 

In  Kittredge  v.  Woods,  3  N.  H.  503,  14  Am.  Dec.  393,  Judge  Rich- 
ardson cites  Wentworth,  59,  for  the  proposition  that  "when  the  land  is 
sold  and  conveyed  without  any  reservation  whatever  crop  is  upon  the 
land  passes,"  and  after  stating  that  ripe  grain  in  the  field  is  subject  to 
execution  as  a  chattel.  Judge  Richardson  adds:  "Yet  no  doubt  seems 
ever  to  have  been  entertained  that  it  passes  with  the  land  when  sold 
without  any  reservation."  And  in  the  case  of  Heavilon  v.  Heavilon, 
29  Ind.  509,  cited  by  plaintiff's  counsel  on  another  ground,  the  Court 
expressly  admit  that  until  severance,  the  crop,  as  between  vendor  and 
purchaser  of  the  land,  is  part  of  the  realty.  Indeed,  the  authorities 
are  quite  decisive  that,  whether  the  crop  of  the  seller  of  the  farm  goes 
with  the  land  to  the  purchaser  of  the  latter,  when  there  is  no  reserva- 
tion or  exception,  depends  upon  whether  the  crop  is  at  the  time  at- 
tached to  the  soil,  and  not  upon  its  condition  as  to  maturity.  And  this 
seems  to  be  the  most  natural  and  most  practical  rule.  When  parties 
are  bargaining  about  land,  the  slightest  observation  will  discover 
whether  the  crops  are  severed  or  not,  and  there  will  be  no  room  for 
question  or  mistake  as  to  whether  they  belong  with  the  land  or  not,  if 
owned  by  the  vendor. 

If  however,  the  crops  are  to  be  considered  as  land  or  personal  chat- 
tels, as  they  continue  or  do  not  continue  to  draw  nourishment  from  the 
soil,  the  instances  will  be  numerous  in  which  very  difficult  inquiries 
will  be  requisite  to  settle  the  point.     *     *     * 

Christiancy,  J.  I  concur  with  my  Brethren  in  the  opinion  of  my 
Brother  Graves  ;  but  had  it  appeared  in  the  case  that  it  was  the  cus- 
tom of  the  country  where  the  farm  was  situated  (as  it  is  in  some  of  the 
Western  states)  to  keep  the  ripe  corn  in  the  field  for  the  winter,  or  till 
wanted  for  use  or  market,  and  to  be  taken  only  on  the  like  occasions  or 
for  the  like  reasons  as  if  stored  in  the  crib  or  granary, — thus  using  the 
field  merely  as  a  substitute  for  such  crib  or  granary, — I  am  inclined  to 


Ch.  6)  EMBLEMENTS  383 

think  I  might  have  agreed  in  the  opinion  intimated  by  the  Supreme 
Court  of  Illinois  in  Powell  v.  Rich,  41   111.  466,  cited  by  Brother 
Graves. 
Judgment  affirmed.* 


FLYNT  V.  CONRAD.  "^•-  '— ^ 

(Supreme  Court  of  North  Carolina,  1SG7.    61  X.  C.  100,  0.3  Am.  Dec.  5S8.) 

Trover  for  corn. 

The  facts  were  that  the  plaintiff's  testator,  on  the  23d  June,  1865,    ".-a.^^ 
executed  to  the  defendant  a  deed  in  fee  for  a  tract  of  land  on  which 
there  was  a  growing  crop  of  corn.    Evidence  of  various  acts  and  ad-  "*■ 

missions  was  given  to  show  that  the  crop  had  been  reserved  by  the  ven- 
dor. The  defendant  was  shown  to  have  converted  it;  and  a  demand 
and  refusal  were  also  shown. 

The  defendant's  counsel  asked  his  Honor  to  charge  that  the  corn    . 
and  everything  else  upon  the  land  passed  by  the  deed,  and  that  parol 
declarations  by  the  defendant  could  not  revoke  the  deed,  or  raise  any 
inference  from  which  a  tenancy  at  will  could  be  set  up. 

His  Honor  charged  the  jury  that  a  deed  for  land  passed  everj'thing 
upon  the  land  except  what  was  legally  reserved ;  and  that  a  growing 
crop  of  corn  could  be  sold  by  parol  so  as  to  pass  the  title;  and  could 
be  reserved  by  parol  so  that  the  reservation  would  be  binding.    *    *    * 

Pearson,  C.  J.^  We  concur  in  die  opinion  of  his  Honor  for  the 
reasons  given  by  him. 

It  is  said  by  the  court  in  Brittain  v.  McKay,  23  N.  C.  (1  Ired.)  265, 
35  Am.  Dec.  738 :  "The  law  makes  a  pointed  distinction  between  those 
profits  which  are  the  spontaneous  products  of  the  earth  or  its  perma- 
nent fruits,  and  the  corn  and  other  growth  of  the  earth  which  are 
produced  annually  by  labor  and  industry,  and  thence  are  called  'fruc- 
tus  industriales.'  The  latter,  for  most  purposes,  are  regarded  as  per- 
sonal chattels.  Upon  the  death  of  the  owner  of  the  land  before  they 
are  gathered,  they  go  to  his  executor  and  not  his  heir.  Upon  the  ter- 
mination of  an  estate  of  uncertain  duration,  by  an  act  other  than  that 
of  the  lessee,  they  belong  to  him  as  personal  chattels,  and  do  not  go 
over  to  the  owner  of  the  soil.    They  are  liable  to  be  seized  and  sold  un- 

2  Ace:  In  re  Andersen,  83  Neb.  8,  118  N.  W.  IIOS,  131  Am.  St  Rep.  613, 
17  Ann.  Cas.  941  (IOCS),  will.  See  Herrou  v.  Herron,  47  Ohio  St.  544,  25  N. 
E.  4:;0,  9  L.  R.  A.  607,  21  Am.  St.  Rep.  &54  (IbOO). 

A.  cut  timber  on  land  owned  by  him,  intending  to  market  the  timber. 
While  it  was  lying  on  the  ground,  he  deeded  the  land  to  B.  Held,  B.  gets  ti- 
tle to  the  timber.     Brackett  v.  Goddard,  54  ile.  309  (1S66). 

8  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


384  EMBLEMENTS  (Ch.  6 

der  execution  as  personal  chattels,  and  a  sale  of  them  while  growing 
is  not  a  sale  of  land  or  any  interest  in  or  concerning  land,  under  the 
Statute  of  Frauds,  but  a  sale  of  goods." 

Thus  it  is  seen  that  a  growing  crop  is  regarded  as  a  personal  chattel. 
The  statute  (Rev.  Code,  c.  34,  §  21)  puts  them  on  the  same  footing  in 
another  very  important  particular,  and  still  farther  lessens  the  differ- 
ence by  making  it  larceny  to  steal  any  Indian  corn,  wheat,  etc.,  grow- 
ing in  a  field.  So  that  the  only  difference  now  seems  to  be  that  the  one 
never  was  attached  to  land  or  has  been  severed,  whereas  the  other  is 
not  severed ;  and  the  legal  effect  of  this  is,  that  when  land  is  conveyed 
the  presump.tion  is  that  wheat,  for  instance,  that  has  been  cut,  and  re- 
mains shocked  in  the  field,  does  not  pass  with  the  land,  whereas  if  it 
has  not  been  cut  the  presumption  is  that  it  does  pass  with  the  land; 
but  the  presumption  in  either  case  may  be  rebutted  by  tlie  acts  and  dec- 
larations of  the  parties.  If  the  grantee  hauls  in  and  houses  the  wheat 
that  has  been  cut,  with  the  knowledge  and  without  objection  on  the 
part  of  the  grantor,  or  if  he  admits  that  it  was  to  belong  to  the  grantee 
according  to  their  agreement,  no  question  would  be  made  as  to  its  be- 
ing his  property.  The  same  acts  and  declarations  in  regard  to  wheat 
growing  would  rebut  the  presumption  and  justify  tlie  inference  that  ac- 
.cording  to  their  agreement  it  was  to  remain  the  property  of  the  gran- 
tor. This  may  be  shown  by  parol  evidence,  for  the  statute  of  frauds 
does  not  apply  to  an  agreement  concerning  a  growing  crop.  Nor  does 
the  admission  of  parol  evidence  violate  the  rule  that  a  deed  shall  not 
be  added  to,  varied  or  contradicted  by  such  evidence. 

In  the  former  case  the  parol  proof  that  according  to  the  contract  of 
sale  the  grantee  was  to  have  the  wheat  that  remained  shocked  in  the 
field,  does  not  add  to  the  deed,  for  its  purpose  and  effect  was  only  to 
execute  one  part  of  the  contract,  and  there  is  no  reason  why  the  other 
part  may  not  be  established  by  parol  proof ;  so,  and  for  the  very  same 
reason,  in  the  latter  case  parol  proof  that  according  to  the  agreement 
the  grantee  was  not  to  have  tlie  growing  crop,  does  not  contradict  the 
deed.  It  would  be  strange  if  the  execution  of  one  part  of  the  agree- 
ment, in  the  only  way  in  which  it  can  be  executed,  should  exclude  proof 
and  defeat  the  other  part,  for  it  must  be  borne  in  mind  tliat  the  deed 
does  not  purport  to  set  out  the  agreement. 

In  respect  to  fruit  on  trees  and  "not  fallen,"  there  is  a  diversity,  for 
trees  are  a  substantial  and  permanent  part  of  the  land,  and  a  deed 
passing  the  land  actually  passes  the  trees  as  part  thereof  and  does  not 
simply  raise  a  presumption  that  it  was  the  intention  to  pass  them ; 
hence,  if  there  be  a  parol  agreement  to  convey  land  and  to  except  the 
fruit  on  trees,  or  certain  timber  trees,  and  a  deed  is  executed  which 
does  not  except  the  fruit  -jn  trees,  that  part  of  the  agreement  in  respect 
to  them  is  defeated,  for  the  statute  of  frauds  requires  it  to  be  in  writ- 
ing ;  and  even  if  the  agreement  be  in  writing,  that  part  of  it  can  only 


Ch.  6)  -EMBLEMENTS  385 

be  set  up  by  a  bill  in  equity  to  reform  the  deed  on  the  ground  of  acci- 
dent or  mistake  in  the  draftsman,  for  the  effect  of  the  deed  is  to  pass 
the  land  and  every  substantial  part  of  it.     ♦     *     * 
Judgment  affirmed." 


DENNETT  v.  HOPKINSON. 
(Supreme  Judicial  Court  of  Maine,  1S73.     63  Me.  350,  18  Am.  Rep.  227.) 

[The  testator  by  will  gave  to  the  defendant  his  farm,  and  all  articles 
of  personal  property  in  and  about  the  buildings.  At  the  time  the  de- 
fendant took  possession  there  was  a  newly  gathered  crop  of  hay  in  the 
barn.  Crops  of  corn  and  beans  were  gathered  by  the  defendant  short- 
ly after  taking  possession.  The  testator's  executor  brings  trover  for 
the  hay,  corn  and  beans.] 

Walton,  J.=  Unharvested  crops  go  to  a  devisee  of  the  land,  and 
not  to  the  executor.  As  against  the  heirs  at  law,  they  go  to  the  execu- 
tor ;  but  as  against  a  devisee  they  do  not. 

It  is  not  easy,  says  Mr.  Ilargravc,  to  account  for  this  distinction, 
which  gives  corn  growing  to  the  devisee,  but  denies  it  to  the  heir.  Mr. 
Broom  also  expresses  the  same  opinion.  Lord  Ellenborough  thought 
the  distinction  "capricious."     But  they  all  agree  that  such  is  the  law. 

Mr.  Broom's  statement  of  the  law  is  as  follows.  He  says  that  where 
a  tenant  in  fee  or  in  tail  dies  after  the  corn  has  been  sown,  but  before 
severance,  it  shall  go  to  his  personal  representatives  and  not  to  the 
heir;  but  if  a  tenant  in  fee  sows  the  land,  and  then  devises  the  land  by 
will,  and  dies  before  severance,  the  devisee  shall  have  the  corn,  and  not 
the  devisor's  executors.     Broom's  Legal  Maxims  (4th  Ed.)  269. 

Lord  Ellenborough's  explanation  of  the  distinction  is  as  follows : 
He  says  that  in  the  testator  himself  the  standing  corn,  though  part  of 
the  realty,  subsists  for  some  purposes  as  a  chattel  interest,  which  goes 
on  his  death  to  his  executors  as  against  the  heirs,  though  as  against  the 

*Aoe.:  Heavilon  v.  Heavilon,  29  Ind.  509  (1868);  Baker  v.  Jordan,  3  Ohio 
St.  438  (l8o4).  Contra.  Brown  v.  Thurston,  56  Me.  126,  96  Am.  Dec.  4.38 
(1S6S>;  Austin  v.  Sawyer,  9  Cow.  (N.  Y.)  39  (1S2S).  Compare  Powell  v.  Rich, 
41  111.  466  (1866). 

A  parol  sale  of  growing  annual  crops  ds  not  within  section  4  of  the  statute 
of  frauds.  Kvniis  v.  Roberts.  5  B.  &  C.  829  (1826);  Bull  v.  Griswold,  19  111. 
631  (ISriS).  Thev  may  be  levied  on  as  personal  property.  PoUey  v.  Johnson, 
52  Kan.  478,  .35'Pae.  S.  23  L.  R.  A.  2.58,  and  notes  (1S93).  Contra,  EUithorpe 
V.  Reidesil,  71  Iowa,  315,  .32  N.  W.  238  (1887). 

Parol  sales  of  fructus  naturales  are  generally  held,  with  various  modifica- 
tions, to  be  within  fourth  section.  See  S  Harv.  L.  R.  367.  Such  products 
cannot  be  levied  on  as  personalty.  Sparrow  v.  Pond,  49  Minn.  412,  52  M.  W. 
36,  16  L.  R.  A.  103,  32  Am.  St.  Rep.  571  (1892);  Rogers  v.  Elliott.  59  N.  H. 
201,  47  Am.  Rep.  192  (1879).  Compare  State  v.  Crook,  132  N.  C.  1053,  44  S. 
E.  32  (1903). 

6  Part  of  the  opinion  is  omitted. 
Biq.Pees.Prop. — 25 


386  EMBLEMENTS  (Ch.  6 

executors  it  goes  to  the  devisee  of  the  land,  upon  the  presumption  that 
such  was  the  intention  of  the  devisor  in  favor  of  his  devisee ;  but  that 
this  presumption  may  be  rebutted  by  other  vk'ords  in  the  will,  which 
show  an  intent  that  the  executor  shall  have  it.  West  v.  Moore,  8 
East,  339. 

And  in  a  case  tried  before  Holt,  C.  J.,  where  the  question  was  wheth- 
er corn  growing  passed  to  the  devisee  of  the  land  or  his  mother,  the 
widow,  to  whom  the  testator  had  bequeathed  "all  his  goods,  chattels, 
etc.,  and  the  stock  of  his  farm,"  the  case  of  Spencer,  Winch.  51,  was 
urged,  where  it  was  resolved  that  the  devisee  of  land  sown  should 
have  the  corn,  and  not  the  executor  of  the  devisor ;  to  which  it  was  an- 
swered, "that  is  true,  if  the  intention  of  the  testator  does  not  appear  to 
be  otherwise."  And  Holt,  C.  J.,  held  that  in  that  case  it  did  appear 
that  the  intention  of  the  testator  was  otherwise.'"'  It  has  been  doubted 
whether  Chief  Justice  Holt's  construction  of  the  will  was  correct ;  but 
the  decision  is  valuable  as  showing,  first,  that  the  general  rule  of  law  is 
that  a  devisee  of  the  land  will  hold  the  unharvested  crops ;  second,  that 
the  rule  is  based  on  the  presumption  that  such  was  the  intention  of  the 
testator;  and  third,  that  this  presumption  may  be  rebutted  by  other 
clauses  in  the  will  showing  that  such  was  not  his  intention.  Cox  v. 
Godsalve,  6  East,  604,  note.     *     *     * 

We  find  on  examination  that  in  many  of  the  States  this  matter  is 
regulated  by  statute ;  but  we  are  not  aware  of  any  such  statute  in  this 
State.     *     *     * 

We  are  inclined  to  think  the  law  is  best  as  it  is;  that  although  the 
rule  which  gives  to  the  devisee  of  the  land  the  unharvested  crops,  and 
denies  them  to  the  heir  at  law,  may  seem  to  be  unphilosophical,  it  is 
nevertheless  founded  in  practical  wisdom.  Not  unfrequently  the  heirs 
at  law  are  mere  children,  without  discretion  of  their  own,  to  enable 
them  to  care  for  the  growing  crops,  and  without  legal  guardians  to 
aid  them.  They  are  sometimes  scattered  and  far  away.  The  death 
of  the  ancestor  may  be  sudden,  and  the  condition  of  this  family  such, 
that  the  crops,  unharvested  as  well  as  harvested,  may  be  needed  for 
their  immediate  support.  Will  it  not  be  better,  therefore,  in  the  great 
majority  of  cases,  that  all  the  crops,  the  unharvested  as  well  as  those 
that  are  harvested,  should  be  regarded  as  personal  property,  and  go  to 
the  administrator?  We  cannot  resist  the  conviction  that  it  is  better 
that  it  should  be  so. 

Not  so,  however,  of  a  devisee  of  the  land.  He  is  the  selected  object 
of  a  specific  donation.  If  for  any  cause  it  is  probable  that  he  will  not 
be  in  a  condition  to  take  charge  of  it  at  the  donor's  death,  the  contin- 
gency can  be  provided  for  in  the  will.    It  is  a  matter  which  the  testa- 

«  A.  devised  specified  land  to  B..  and  bequeathed  to  C.  all  "goods,  chattels 
and  personal  estate  *  *  *  not  specifically  bequeathed."  Held,  C.  is  not 
entitled  to  the  crops  as  against  B.    Cooper  v.  Woolfitt,  2  H.  &  N.  122  (1857). 


Ch.  6)  EMBLEMENTS  387 

tor  would  be  likely  to  think  of,  and  provide  for,  if  necessary.  If  there 
is  no  such  provision,  and  the  gift  is  unconditional,  without  words  of 
limitation  or  restraint,  we  think  it  may  fairly  be  presumed  that  it  was 
the  intention  of  the  donor  that  his  donee  should  take  the  land,  as  a 
grantee  would  take  it,  with  the  right  to  immediate  possession,  and  the 
full  enjoyment  of  all  that  is  growing  upon  it,  as  well  the  unsevered 
annual  crops,  as  the  more  permanent  growth. 

In  this  case  the  homestead  farm  of  the  testator  was  devised  to  his 
cousin  and  his  cousin's  son — the  father  to  have  the  use,  improvement 
and  income  of  it  till  the  son  should  arrive  at  age,  the  son  then  to  have 
it  as  his  own  property.  There  is  nothing  in  the  devising  clauses,  or  in 
any  other  part  of  the  will,  to  rebut  the  presumption  that  the  devisees 
were  to  have  the  unharvestcd  crops  that  might  be  growing  upon  it  at 
the  time  of  the  testator's  death.  On  the  contrary  the  presumption  is 
very  much  strengthened  by  the  fact  that  the  testator  gave  all  his  live 
stock  and  farming  tools,  and  all  his  household  furniture  and  other  ar- 
ticles of  personal  property  in  and  about  the  buildings  to  the  same  per- 
sons. It  is  impossible  to  except  out  of  these  two  sweeping  clauses, 
any  of  the  crops,  whether  harvested  and  in  the  barns,  or  still  growing 
upon  the  land  unharvested.  If  harvested  and  in  the  barns,  they  would 
pass  by  virtue  of  that  clause  in  the  will  which  bequeaths  all  articles  of 
personal  property  in  and  about  the  buildings.  If  not  harvested  they 
passed  as  part  and  parcel  of  the  realty.     *     *     * 

Judgment  for  defendant.^ 


NOTE 
(1  Coke  on  Littleton,  55  a,  b.) 

Tenant  at  will  is  where  lands  or  tenements  are  let  by  one  man  to  an- 
other, to  have  and  to  hold  to  him  at  the  will  of  the  lessor,  by  force  of 
which  lease  the  lessee  is  in  possession.  In  this  case  the  lessee  is  called 
tenant  at  will,  because  he  hath  no  certain  nor  sure  estate,  for  the  lessor 
may  put  him  out  at  what  time  it  pleaseth  him.  Yet  if  the  lessee  soweth 
the  land,  and  the  lessor,  after  it  is  sowne  and  before  the  corne  is  ripe, 
put  him  out,  yet  the  lessee  shall  have  the  corne,  and  shall  have  free  en- 
try egresse  and  regresse  to  cut  and  carrie  away  the  corne,*  because  he 

7  A.  died  intestate ;  B.,  liis  heir,  gatliored  the  crop  and  sold  it  to  C.  who 
knew  the  facts.  Held,  D.,  the  administrator,  may  maintain  trover  against  C. 
Marx  V.  Nelms,  95  Ala.  304,  10  South.  551  (1S91). 

8  A.,  tenant  for  life,  leased  to  B.,  who  planted  the  land.     A.  died  before  B. 
gathered  the  crop.     Held,  C,  the  reversioner,  is  entitled  to  the  immediate 
possession  of  the  land.     Edghill  v.  Manke.y,  79  Neb.  347,  112  N.  W.  570,  11^ 
L.  R.  A.  (N.  S.)  688  (1907).     Compare  Bevans  v,  Briscoe,  4  Har.  &  J.  (Md.) 
139  (181G).      • 


388  EMBLEMENTS  (Cll.  G 

knew  not  at  what  time  the  lessor  would  enter  upon  him.  Otherwise  it 
is  if  tenant  for  yeares,  which  knowetli  the  end  of  liis  terme,  doth  sow 
the  land,  and  his  terme  endeth  before  the  corne  is  ripe.  In  this  case 
the  lessor,  or  he  in  the  reversion,  shall  have  the  corne,  because  the 
lessee  knew  the  certainty  of  his  terme,  and  when  it  would  end.  *  *  * 
"Yet  if  the  lessee  soweth  the  land,  and  the  lessor  after  it  is  sowne, 
etc."  The  reason  of  this  is,  for  that  the  estate  of  the  lessee  is  uncer- 
taine,  and  therefore  lest  the  ground  should  be  unmanured,  which 
should  be  hurtful  to  the  commonwealth,  he  shall  reape  the  crop  which 
he  sowed  in  peace,  albeit  the  lessor  doth  determine  his  will  before  it  be 
ripe.  And  so  it  is  if  he  set  rootes,  or  sow  hempe  or  flax,  or  any  other 
annual  profit,  if  after  the  same  be  planted  the  lessor  oust  the  lessee; 
or  if  the  lessee  dieth,  yet  he  or  his  executors  shall  have  that  yeare's 
crop.  But  if  he  plant  young  fruit  trees,  or  young  oaks,  ashes,  elmes, 
etc.,  or  sow  the  ground  with  acornes,  etc.,  there  the  lessor  may  put 
him  out  notwithstanding,  because  they  will  yeeld  no  present  annual 
profit.  And  this  is  not  only  proper  to  a  lessee  at  will,  that  when  the 
lessor  determines  his  will  that  the  lessee  shall  have  the  corne  sowne, 
etc.,  but  to  every  particular  tenant  that  hath  an  estate  incertaine,  for 
that  is  the  reason  which  Littleton  expresseth  in  these  words  (because 
he  hath  no  certain  nor  sure  estate).''  And  therefore  if  tenant  for  life 
soweth  the  ground,  and  dieth,  his  executors  shall  have  the  corne,  for 
that  his  estate  was  uncertaine,  and  determined  by  the  act  of  God.  And 
the  same  law  is  of  the  lessee  for  yeares  of  tenant  for  life.  So  if  a  man 
be  seised  of  land  in  the  right  of  his  wife,  and  soweth  the  ground,  and 
he  dieth,  his  executors  shall  have  the  corne,  and  if  his  wife  die  before 
him  he  shall  have  the  corne.  But  if  husband  and  wife  be  jointenants 
of  the  land,  and  the  husband  soweth  the  ground,  and  the  land  snr- 
viveth  to  the  wife,  it  is  said  that  she  shall  have  the  corne.  If  tenant 
pur  terme  d'auter  vie  soweth  the  ground,  and  cesty  que  vie  dieth,  the 
lessee  shall  have  the  corne.  If  a  man  seised  of  lands  in  fee  hath  issue 
a  daughter  and  dieth,  his  wife  being  ensient  with  a  son,  the  daughter 
soweth  the  ground,  the  sonne  is  borne,  yet  the  daughter  shall  have  the 
corne,  because  her  estate  was  lawful,  and  defeated  by  the  act  of  God, 
and  it  is  good  for  the  commonwealth  that  the  ground  be  sowne.  But 
if  the  lessee  at  will  sow  the  ground  with  corne,  etc.,  and  after  he  him- 
self determine  his  will  and  refuseth  to  occupy  the  ground,  in  that  case 
the  lessor  shall  have  the  corne,  becauseth  he  loseth  his  rent.  And  if  a 
woman  that  holdeth  land  durante  viduitate  sua  soweth  the  ground  and 
taketh  husband,  the  lessor  shall  have  the  embleaments,  because  that  the 
determination  of  her  owne  estate  grew  by  her  owne  act.  But  where 
the  estate  of  the  lessee  being  incertaine  is  defeasible  by  a  right  para- 

0  See  Davis  v.  BrocUlebank,  9  N.  H.  73  (1837) ;    Harris  v.  Frink,  49  N.  Y. 
24,  10  Am.  Rep.  31S  (1872). 


Ch.  6)  EMBLEMENTS  389 

mount,  or  if  the  lease  determine  by  the  act  of  the  lessee,  as  by  forfei- 
ture, condition,  etc.,  there  be  that  hath  the  right  paramount,  or  that 
entreth  for  any  forfeiture,  etc.,  shall  have  the  come.*" 

If  a  disseisor  sow  the  ground  and  sever  the  come,  and  the  disseissee 
re-enter,  he  shall  havo  the  come,  because  he  entreth  by  a  former  title, 
and  severance  or  removing  of  the  corne  altereth  not  the  case,  for  the 
regresse  is  a  recontinuation  of  the  freehold  in  him  in  judgment  of  law 
from  the  beginning.     *     *     * 


WHITMARSH  v.  CUTTING. 
(Supreme  Court  of  New  York,  1S13.    10  Jolins.  360.) 

In  error,  on  certiorari,  from  a  justice's  court.  Whitmarsh  brought 
an  action  of  trespass  quare  clausum  fregit  against  Cutting,  for  entering 
his  close  and  carrj'ing  away  a  quantity  of  wheat  and  rje.  The  de- 
fendant pleaded  not  guilty;  and  there  was  a  trial  by  jury.  The  plain- 
tifif  proved  that  in  August,  1812,  the  defendant  entered  his  close  and 
took  and  carried  away  the  wheat,  etc. 

The  defendant  then  proved  that  the  wheat  and  ryQ  had  been  levied 
upon  by  a  constable,  on  an  execution  against  one  Hilton,  and  that  the 
defendant  assisted  the  constable  in  carrying  the  grain  away.  The  de- 
fendant offered  Hilton  as  a  witness  to  prove  that  the  grain  belonged  to 
Hilton,  who  was  objected  to,  as  interested,  but  admitted  by  the  justice. 
Hilton  testified  that  he  entered  on  the  premises  in  April,  1810,  under  a 
lease  from  the  owner  of  the  land,  for  one  year  from  the  20th  April, 
1810;  and  on  the  10th  June,  ISIO,  the  owner,  by  endorsement  on  the 
lease,  agreed  to  let  Hilton  have  the  farm  for  another  year ;  it  was  ad- 
mitted that  the  plaintiff  was  lessee  of  the  owner,  and  that  in  May,  1812, 
Hilton  was  ousted  under  the  act  against  forcible  entry  and  detainer. 
The  grain  was  sown  by  Hilton,  but  reaped  and  gathered  by  the  plaintiff 
after  his  entry  in  May,  1812. 

The  question  submitted  to  the  jury  was,  whether  he  was  entitled  to 
the  grain  as  emblements.    The  jury  found  a  verdict  for  the  defendant. 

Per  Curiam.  The  verdict  was  clearly  against  law.  The  crop  sown 
did  not  belong  to  Hilton,  but  to  his  successor.  This  lease  was  for  a 
year  certain,  and  then  renewed  for  the  next  year ;  and  it  was  his  folly 
to  sow  when  he  knew  that  his  term  would  expire  before  he  could  reap. 
The  doctrine  of  emblements  is  founded  entirely  on  the  uncertainty  of 
the  termination  of  tlie  tenant's  estate.    Where  that  is  certain  there  ex- 

i»  Ace:    Davis  v.  Ej  toD,  7  Bing.  154  (1S30). 


390  EMBLEMENTS  (Cll.  6 

ists  no  title  to  emblements.    Without  touching  any  other  points,  we  are 
of  opinion  that  the  verdict  was  against  law,  and  evidence,  and  that  the 
judgment  below  must  be  reversed. 
Judgment  reversed.^^ 


HENDRIXSON  v.  CARDWELL. 

(Supreme  Court  of  Tennessee,  1876.    9  Baxt.  [68  Tenn.]  3S9,  40  Am.  Rop.  93.) 

McFarland,  J.  This  was  an  action  of  replevin  brought  by  Card- 
well  to  recover  a  lot  of  oats.  The  facts  deposed  to  by  the  plaintiff,  and 
J.  B.  Hoxsie,  witness  for  the  defendant,  are,  that  Ho.xsie,  as  agent  of 
Dr.  Pearne,  rented  to  the  plaintiff  certain  premises  near  Knoxville,  be- 
ing a  house  and  about  twenty  acres  of  land.  The  plaintiff  says  he 
rented  "at  twelve  dollars  and  a  half  a  month,  payable  in  advance,  but 
by  the  year,  in  the  month  of  March,  1872,  and  remained  until  the  1st 
of  November,  1873.  I  expected  to  keep  the  place  four  or  five  years, 
as  Dr.  Pearne  was  absent  from  the  country,  and  I  expected  to  keep 
it  until  his  return."  Hoxsie  says  "he  rented  the  place  to  the  plaintiff  at 
twelve  dollars  and  fifty  cents  per  month,  the  renting  was  not  by  the 
year  or  even  for  any  definite  time." 

In  November,  1872,  the  plaintiff  proves  that  he  sowed  on  the  land  a 
crop  of  English  winter  oats  and  harvested  the  same  in  June,  1873, 
when  he  plowed  in  the  stubble  so  as  to  get  another  crop,  which  was  the 
custom,  and  the  crop  was  growing  when  he  left  the  place,  November 
1st,  1873.  In  June  after  plaintiff  left,  defendant  cut  and  harvested  the 
oats  for  which  the  suit  is  brought. 

Hoxsie  was  offered  better  terms  by  the  defendant,  who  proposed  to 
take  the  premises  for  a  longer  lease,  and  this  was  the  reason  the  plain- 
tiff's tenancy  was  terminated.  The  plaintiff  gave  up  the  premises  with- 
out objection  and  made  no  mention  of  the  growing  oats  crop,  and  none 
was  made  by  Hoxsie  upon  leasing  to  the  defendant.  The  question  is, 
do  these  facts  entitle  the  plaintiff  to  a  recovery  ? 

The  argument  for  the  plaintiff"  is,  that  he  was  a  tenant  at  will,  and 
his  term  having  been  terminated  by  his  landlord,  he  was  entitled  to  the 
growing  crop  as  emblements  and  free  egress,  etc.,  to  cut  and  carry  the 
crops  away.  The  general  principle  is  not  doubted.  See  2  Blackstone, 
p.  126.  But  if  the  plaintiff  was  a  tenant  from  year  to  year,  as  his  own 
testimony  indicates,  he  would  not  be  entitled  to  the  emblements  after 
the  year  which  terminated  his  tenancy.    Though,  as  the  judge  charged 

11  In  some  jurisdictions  the  courts  have  recognized  a  right  by  custom  for 
the  tenant  for  a  definite  term  to  gather  the  way-going  crop.  Clarlv  v.  Banlis, 
6  Hou.st.  (Del.)  584  (1883).  Contra,  Harris  v.  Carson,  7  Leigh  (Va.)  632,  30  Am. 
Dec.  510  (1836).    Compare  Foster  v.  Robinson,  6  Ohio  St.  90  (1856). 


Ch.  6)  EMBLEMENTS  391 

in  this  case,  if  the  landlord  suffered  the  tenant  to  hold  over  after  the 
termination  of  the  first  year,  the  presumption  would  be  that  the  ten- 
ancy was  to  continue  for  another  year,  and  if  the  landlord  terminated 
the  tenancy  before  the  expiration  of  the  second  year,  the  tenant  should 
have  to  the  end  of  the  year  to  remove  the  crops,  but  we  think  not  be- 
yond the  end  of  the  year,  as  is  to  be  implied  from  the  judge's  charge. 
For  in  a  case  of  tenancy  from  year  to  year,  where  -the  term  depends 
upon  a  certainty,  if  the  tenant  holds  to  the  end  of  the  year,  he  cannot 
have  emblements  unless  specially  reserved.  Broom's  Legal  Ma.xims,  p. 
396.  And  so,  if  his  term  is  by  the  landlord  wrongfully  terminated  be- 
fore the  year,  his  right  to  emblements  could  not  extend  beyond  the 
year,  his  right  in  this  respect  could  not  be  increased  by  the  termination 
of  his  tenancy  before  the  end  of  the  year.'- 

But  another  question  is,  whether  the  crop  is  of  that  character  secur- 
ed to  tenants  in  such  cases. 

When  the  tenancy  is  of  uncertain  duration  and  is  terminated  by  the 
landlord  after  the  crop  is  sown,  but  before  it  is  severed  from  the  free- 
hold, the  tenant  or  his  representative  shall  be  entitled  to  one  crop  of 
that  species  only,  which  ordinarily  repays  the  labor  by  which  it  is  pro- 
duced within  the  year  within  which  that  labor  is  bestowed,  though  the 
crop  may  in  extraordinary  seasons  be  delayed  beyond  that  period. 
But  he  is  not  entitled  to  all  the  fruits  of  his  labor,  as  such  right  might 
be  extended  to  things  of  a  more  permanent  nature,  such  as  trees  or 
more  crops  than  one,  since  the  cultivator  very  often  looks  for  a  com- 
pensation for  his  capital  and  labor  in  the  produce  of  successive  years. 
Such  is  the  law,  as  stated  in  Broom's  Legal  Maxims,  pp.  236  and  394. 

The  crop  claimed  in  this  case  is,  ordinarily,  an  annual  crop,  but  the 
plaintiff  harvested  the  first  year's  product  of  the  sowing,  and  claims  a 
second  year's  crop  of  the  same  sowing.  True,  he  bestowed  additional 
labor  to  produce  this  second  crop,  but  as  we  understand  the  rule  as 
above  stated,  it  goes  no  farther  than  to  give  to  the  tenant  the  benefit 
of  the  law  of  emblements,  so  as  to  secure  to  him  the  benefit  of  the  an- 
nual crop,  sown  by  him  before  the  termination  of  his  term.  If  this 
second  crop  of  oats  had  grown  without  labor  by  the  plaintiff',  he  would 
not  have  been  entitled  to  it  after  the  expiration  of  his  term,  as  he  had 

12  "It  is  true  that  a  tenant,  holding  by  a  tennre  which  is  uncei-tain  as  to 
the  time  at  wliich  it  will  cease,  is  entitled  to  take  off,  after  it  has  ceased, 
the  crops  which  he  has  sowed  in  the  due  course  of  husbandry.  But  if  it  is 
certain,  at  the  time  when  he  sows,  how  Ions  it  will  continue,  and  it  i.s  plain 
that  he  cannot,  before  it  ceases,  reap  that  which  he  may  sow,  then  it  is  his 
folly  if  he  sows,  and  he  will  not  be  permitted  to  reap.  *  *  »  We  think 
that  it  matters  not  how  it  is  made  certain  when  an  uncertain  term  will  cease. 
It  may  be  by  the  death  of  one  for  whose  life  the  lands  are  held,  or  it  may  be 
by  the  giving  of  a  sufficient  notice  to  quit  by  one  entitled  to  give  it.  A  notice 
to  cjiut  terminates  the  tenancy  on  tlie  day  the  notice  expires."  Reeder  v. 
Sayre,  70  N.  Y.  ISO,  185,  26  Am.  Kep.  567  (1S77).  See  Kingsbury  v.  Collins,  4 
Bing.  202  (1827). 


392  EMBLEMENTS  (Ch.  6 

already  harvested  the  crop  sown  by  him,  and  tlie  additional  labor  be- 
stowed upon  it  does  not  change  the  result.  The  crop  claimed  matured 
in  1874,  was  sown  in  November,  1872.  Plowing  in  the  stubble,  we 
think,  is  not  equivalent  to  sowing  another  crop,  though  it  produce  the 
same  result.  The  policy  of  the  rule  is  the  encouragement  of  the  tenant 
in  the  cultivation  of  the  soil,  and  is  satisfied  by  giving  him,  after  the 
termination  of  his  term,  the  proceeds  of  his  annual  crop  sown  by  him. 
Let  the  judgment  be  reversed.^* 


FLORALA  SAWMILL  CO.  v.  PARRISH. 
(Supreme  Court  of  Alabama,  lOOS.     155  Ala.  462,  46  South.  461.) 

Simpson,  J.'*  The  bill  in  this  case  was  filed  by  the  appellants 
against  the  appellees.  The  gravamen  of  the  complaint  is  that  after  the 
expiration  of  a  lease  for  turpentine  purposes  the  respondents  refused 
to  deliver  up  the  premises,  but  continued  to  "dip  and  scrape  the  tur- 
pentine from  the  pine  timber  and  to  remove  the  same  from  the  land," 
are  continuing  to  do  so,  and  are  insolvent.  The  bill  prays  for  an  in- 
junction (which  was  granted)  prohibiting  resp6ndents  from  "chipping, 
dipping,  scraping,  or  streaking,  or  in  any  manner  interfering  with,  the 
timber  and  turpentine  on  the  lands."     *     *     * 

The  question,  then,  presents  itself :  What  is  the  nature  of  the  inter- 
est in  the  "scrape"  and  "dip"  and  what  are  the  rights  of  the  lessee, 
after  the  determination  of  his  lease?  *  *  *  As  to  property  which 
belongs  to  the  tenant,  and  which  does  not  come  under  the  definition  of 
emblements,  the  tenant  may,  within  a  reasonable  time  after  the  termi- 
nation of  even  a  definite  tenancy,  enter  upon  the  premises  and  remove 
the  same.  24  Cyc.  p.  113;  Daniels  v.  Brown,  34  N.  H.  454,  69  Am. 
Dec.  505,  and  note.  So  it  becomes  important,  in  this  case,  to  determine 
whether  the  property  in  question  came  under  the  definition  of  emble- 

J3A  lessee  for  the  life  of  another  sowed  barley  and  clover  together;  the 
life  tenant  died  before  either  matured;  the  lessee  later  cut  the  barle.v  and 
incidentally  some  of  the  clover.  Held,  he  was  not  entitled  to  cut  the  clover 
when  it  subsequently  fully  matured,  more  than  a  year  after  the  sowing. 
Graves  v.  Weld,  5  B.  &  Aid.  105  (18.'!3). 

Hops  growing  from  ancient  roots,  but  maturing  shortl.y  after  the  death  of 
the  life  tenaut,  held  emblements.  Latham  v.  Atwood,  Cro.  Car.  515  (1638). 
So  as  to  sugar  cane  although  it  takes  more  than,  a  year  for  it  to  mature. 
Nawahi  v.  Hakalau,  14  Haw.  460  (1902).  Compare  Sparrow  v.  Pond,  49  Minn. 
412,  52  N.  W.  36,  16  L.  R.  A.  103,  32  Am.  St.  Rep.  571  (1892) ;  ReifC  v.  Reiff, 
64  I'a.  134  (1S70). 

The  lessee  of  a  life  tenant  sowed  the  land  just  before  the  death  of  the 
life  tenant  and  knowing  that  he  was  dying.  Held  entitled  to  emblements. 
Bradley  v.  Bailey,  56  Conn.  374,  15  Atl.  746,  1  L.  R.  A.  427,  7  Am.  St,  Kep. 
316  (1888).     Compare  Price  v.  Pickett,  21  Ala.  741  (1852). 

14  Part  of  the  opinion  is  omitted. 


Ch.  6)  EMBLEMENTS  393 

ments  or  whether  it  was  property  which  had  been  separated  from  the 
soil  and  had  become  the  personal  property  of  the  tenant.     *     *     * 

In  so  far  as  the  "dip"  is  concerned,  being  the  turpentine  which  has 
dripped  from  the  trees  and  been  caught  in  boxes  prepared  for  that 
purpose,  it  seems  clear  that  it  has  been  severed  from  the  realty  and  be- 
come the  personal  property  of  the  tenant,  which  he  might  remove  with- 
in a  reasonable  time  after  the  expiration  of  the  tenancy.  State  v. 
Moore,  33  N.  C.  70;  State  v.  King,  98  N.  C.  648,  4  S.  E.  44;  Dickens 
V.  State,  142  Ala.  49,  51,  52,  39  South.  14,  110  Am.  S't.  Rep.  17.  As 
will  be  noticed  from  the  terms  of  the  decree  appealed  from,  we  are  not 
dealing  with  the  question  of  the  right  of  a  tenant  to  hold  possession  of 
the  premises  after  the  expiration  of  his  term,  but  with  the  right  of  in- 
gress and  egress  for  the  purpose  of  removing  his  property. 

As  to  the  "scrape"  the  question  is  more  difficult.  It  is  true  that  the 
Supreme  Court  of  North  Carolina  has  held  that  this  "scrape"  is  not  a 
part  of  the  realty  and  may  be  removed  by  the  tenant.  Lewis  v.  Mc- 
Natt  et  al.,  65  N.  C.  63.  *  *  *  There  is  no  cultivation  to  make  the 
trees  produce  turpentine,  but  it  is  merely  a  process  of  catching  that 
which  the  tree  has  naturally  produced  as  it  descends.  The  boxes  are 
set  to  catch  it,  and  the  trees  are  "scored"  above,  in  order  to  direct  the 
current  of  the  descending  sap  into  the  box ;  and  in  its  descent  a  part 
of  the  sap  adheres  to  the  tree,  hardens  there,  and,  as  stated  in  the  case 
of  Lewis  V.  McNatt,  supra,  "must  be  removed  before  the  sap  begins 
to  flow  in  the  subsequent  spring,  for  then  the  new  turpentine  mingles 
with  the  old  'scrape.'  "  From  the  foregoing  authorities  it  seems  clear 
that  the  "scrape"  could  not  be  said  to  have  been  separated  from  the 
tree,  so  as  to  become  the  personal  property  of  the  tenant,  for  it  was 
still  adhering,  as  a  part  of  the  tree,  like  the  fruit  on  a  tree.  Even  if  it 
could  be  considered  as  "fructus  industrials"  and  therefore  claimable 
as  emblements,  it  could  not  be  so  claimed  in  this  case,  for  the  reason 
that  the  lease  was  for  a  definite  term,  which  had  expired.     *     *     * 

Injunction  dissolved  only  in  so  far  as  it  restrains  the  respondents 
from  entering  upon  the  premises  and  dipping  the  turpentine  from  the 
boxes. ^° 

15  Compare  Lewis  v.  McXatt,  65  N.  C.  63  (1871). 

A.,  a  tenant  for  a  definite  term  left  a  matured  crop  on  the  land  at  the  ex- 
piration of  his  term ;  B.,  the  lessor,  gathered  it  Held,  A.  may  replovv  it 
from  B.  Opperman  v.  Littlejohn,  98  Miss.  636,  54  South.  77,  35  L.  R.  A."  (N. 
S.)  707  (1910). 


394  EMBLEMENTS  (Ch.  6 

ROBERT  BROS.  v.  HURDLE. 
(Supreme  Court  of  North  Carolina,  1S49.    32  N.  C.  490,  51  Am.  Dec.  400.) 

This  was  trover  for  a  quantity  of  corn,  fodder,  peas  and  beans.  The 
defendant  admitted  the  conversion,  and  proved,  that,  in  the  fall  of 
1846,  he  recovered  in  ejectment  of  the  plaintiff  the  land  on  which  the 
articles  were  grown,  and  was  put  in  possession  by  the  sheriff;  at 
which  time,  the  corn  and  some  part  of  the  peas  and  beans  were  grow- 
ing; the  fodder  had  been  pulled  and  stacked,  and  the  balance  of  the 
peas  and  beans  had  been  gathered  and  put  into  a  crib  on  the  premises. 
They  were  of  the  growth  of  the  year  1846.  The  demise  was  laid  in 
June,  1845.     *     *     * 

Under  tlie  instructions  of  the  court,  the  jury  found  for  the  plaintiff' 
as  to  the  value  of  the  fodder,  peas  and  beans  that  had  been  gathered. 
The  defendant  appealed. 

Pearson,  J.'^  There  is  no  error  in  the  instructions.  The  corn,  etc., 
which  was  attached  to  the  land  at  the  time  the  defendant  was  put  in 
possession,  passed  with  it  and  belonged  to  him.  But  the  fodder,  etc., 
which  had  been  severed,  although  on  the  premises,  did  not  pass  with 
the  land ;  for,  it  had  ceased  to  be  a  part  thereof,  and  the  defendant  had 
no  right  to  take  it.  His  remedy  was  an  action,  not  for  the  specific  ar- 
ticles, but  for  damages,  by  way  of  mesne  profits.  If  the  defendant  had 
a  right  to  take  the  specific  articles,  he  would  for  the  same  reason  be  en- 
titled to  recover  their  value  in  trover  against  the  plaintiff',  or  any  one, 
to  whom  he  might  have  sold  them.  The  amount  of  which  would  be, 
when  one  who  has  been  evicted  regains  possession,  he  may  maintain 
trover  against  every  one  who  has  bought  a  bushel  of  corn  or  a  load  of 
wood  from  the  trespasser,  at  any  time  while  he  was  in  pKDSsession. 
This,  especially  in  a  countrj'  where  there  are  no  markets  overt,  would 
be  inconvenient,  and  no  person  could  safely  buy  of  one  whose  title  ad- 
mitted of  question.  The  mere  statement  of  the  proposition  shocks  our 
notions  of  common  sense  and  calls  for  an  overpowering  weight  of  au- 
thority to  sustain  it.  There  is  no  authority  for  it  in  our  reports,  the 
invariable  practice  having  been  to  bring  trespass  for  mesne  profits  and 
for  damages,  if  there  has  been  any  destruction  or  injury  to  the  free- 
hold. 

Trover  for  the  specific  articles,  either  against  a  trespasser  or  a  third 
person,  has  never  been  attempted.  Upoi  examination,  it  is  found,  that 
there  is  no  authority  for  it  anywhere.     *     *     * 

In  this  case  the  articles  sued  for  were  of  annual  production ;  and  my 
Lord  Coke  suggests  a  distinction  between  such  things  as  corn,  etc., 
which  come  by  the  act  and  operation  of  the  party;  "for,  if  he  had  not 

18  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  6)  EMBLEMENTS  395 

sowed  the  land,  no  corn  would  have  been  there,"  and  such  things  as 
come  by  the  act  of  God,  as  trees,  etc.  We  do  not,  however,  put  the 
case  upon  this  distinction.  The  true  distinction  is,  where  a  tenant,  or 
one  having  a  particular  estate,  wrongfully  severs  a  tree  or  other  thing 
from  the  freehold,  it  becomes  personal  property  and  immediately  be- 
longs to  the  landlord  or  remainderman,  who  may  punish  the  tenant  for 
waste  and  may  take  the  thing;  or  may  presently  bring  trover  against 
the  tenant  or  any  third  person,  who  has  converted  it.  For,  as  there 
is  no  possession  adverse  to  him,  the  thing  when  severed  immediately 
belongs  to  him  as  a  chattel.  Besides,  he  would  otherwise  be  without 
remedy  as  he  could  not  bring  trespass  quare  clausum,  the  tenant  being 
rightfully  in  possession. 

But  when  one,  who  is  in  the  adverse  possession,  gathers  a  crop  in 
the  course  of  husbandry,  or  severs  a  tree  or  other  thing  from  the  land, 
the  thing  severed  becomes  a  chattel,  but  it  does  not  become  the  proper- 
ty of  the  owner  of  the  land ;  for,  his  title  is  divested — he  is  out  of 
possession  and  has  no  right  to  the  immediate  possession  of  the  thing, 
nor  can  he  bring  any  action  until  he  regains  possession.  Then,  by  the 
jus  postlirninii  or  fiction  of  relation,  he  is  considered  as  having  been  in 
possession  all  the  time  for  the  purpose  of  bringing  trespass  quare  claus- 
um fregit  with  a  continuando  from  day  to  day,  in  which  he  recovers 
the  value  of  the  mesne  profits  and  damages  for  the  injury  done  to  his 
freehold  by  the  severance  of  any  part  of  it,  or  for  any  other  injury 
consequent  to  the  breach  of  his  close.  This  action  can  be  maintained 
against  any  one,  who  has  been  in  possession  for  the  time  he  held  it, 
but  the  owner  of  the  land  cannot  sue  for  the  thing  severed  in  trover  or 
detinue  as  a  chattel ;  for,  it  is  not  his  chattel — it  did  not  become  so  at 
the  time  it  was  severed,  and  the  title  to  it  as  a  chattel  cannot  pass  to 
him  afterwards,  when  he  regains  the  possession,  by  force  of  the  jus 
postlirninii.  The  fiction  is  made  to  enable  him  to  recover  for  breaking 
his  close  and  the  injuries  consequent  thereto,  but  it  is  not  made  for  tlie 
purpose  of  vesting  a-  right  to  chattels.     *     *     * 

Judgment  affirmed.^' 

1'  Ace:  Jenkins  v.  JlcCoy,  50  Mo.  34S  (1S72).  Contra,  Simpkins  v.  Rojiers, 
1.5  III.  397  (18.54) ;  Thoines  v.  Moody,  11  Me.  139  (1834).  See  Liford's  Case, 
11  Co.  46  p,  51  a  (1614). 

Similarly,  if  the  disseisor  sells  the  gathered  crops  to  a  third  person,  the 
rightful  owner,  after  regaining  possession  of  the  land,  cannot  recover  the 
crops  or  their  value  from  such  purchaser.  Johnston  v.  Fish.  105  Cal.  420. 
38  Pac.  979,  45  Am.  St.  Rep.  53  (1895).  Compare  Stockwell  v.  Phelps,  34  N.  Y. 
363,  90  Am.  Dec.  710  (1806). 

A.,  without  authority,  cut  the  grass  on  B.'s  land,  and  planted  and  harvest- 
ed grain  on  C.'s  land.  Grass  and  grain  were  destroyed  by  B.'s  negligent  act. 
Held,  A.  may  recover  from  B.  the  value  of  the  grain,  but  not  the  value  of 
the  grass.  Lindsav  v.  Winona  &  St.  P.  R.  Co.,  29  Minn.  411,  13  N.  W.  191, 
43  Am.  Rep.  328  (1882). 


396  EMBLEMENTS  (Ch.  6 

LANE  V.  KING. 

(Supreme  Court  of  New  York,  1832.    8  Wend.  5S4,  24  Am.  Dec.  IOj.) 

Error  from  Greene  common  pleas.  King  sued  Lane  in  a  justice's 
/  >.^v^  court  for  cutting  and  carrying  away  rye  growing  upon  a  certain  farm, 
'   *"  and   recovered  judgment.      Lane  appealed  to   the   common   pleas   of 

fi.r  Greene,  and  on  the  trial  in  that  court  tlie  following  facts  appeared :  in 
December  1827,  one  Lampman  executed  a  mortgage  of  a  farm  to  King, 
to  secure  the  payment  of  $L300,  of  which  $250  was  to  be  paid  within 
one  year,  and  the  residue  in  four  annual  installments.  In  June,  1829, 
Lampman  let  a  portion  of  his  farm  to  Lane  for  the  term  of  two  years, 
at  a  rent  of  $35  per  annum;  Lane  to  be  entitled  to  the  grain  in  the 
ground  at  the  expiration  of  the  lease.  On  the  23d  September,  1829, 
King  filed  a  bill  in  equity  to  foreclose  the  mortgage,  not  making  Lane 
a  party  to  the  suit,  and  in  December,  1829,  obtained  an  order  of  sale 
containing  a  direction  for  the  delivery  of  the  mortgaged  premises  to 
the  purchaser.  In  February,  1830,  the  premises  were  sold  under  the 
order,  and  King  became  the  purchaser,  who  put  a  tenant  into  posses- 
sion. At  the  time  of  the  entry  of  the  tenant  of  King,  there  was  a  crop 
of  rye  in  the  ground  on  that  portion  of  the  farm  let  to  Lane,  and  when 
the  grain  was  fit  for  harvesting,  Lane  entered  and  cut  and  carried 
away  the  grain,  for  the  doing  of  which  King  sued  him  in  trespass. 
Lane  knew  of  the  mortgage  at  the  time  he  took  his  lease,  and  in  the  au- 
tumn.of  1829,  was  warned  by  King  that  he  had  better  not  sow  any 
grain  on  the  farm.  The  jury  under  the  charge  of  the  court,  found  a 
verdict  for  the  plaintiff;  whereupon  a  case  was  made,  and  stipulation 
entered  into  that  if  this  court  should  be  of  opinion  that  King  was  en- 
titled to  recover,  judgment  should  be  entered  in  his  favor  for  $40  dam- 
ages and  $30  costs';  and  if  not,  that  judgment  should  be  entered  for 
Lane  for  $30  costs. 

Sutherland,  J.  The  question  in  this  case  is  whether  the  lessee  of 
a  mortgagor  is  entitled,  as  against  the  mortgagee,  to  the  crops  growing 
on  the  mortgaged  premises  at  the  time  of  the  foreclosure  and  sale,  the 
mortgagee  having  become  the  purchaser.  In  England  the  mortgagee 
may  sustain  an  action  of  ejectment  against  the  mortgagor  or  any  one 
claiming  under  him,  by  title  subsequent  to  the  mortgage,  without  any 
notice  to  quit ;  they  are  considered  mere  tenants  at  will.  Keech  v.  Hall, 
Doug.  21 ;  Moss  v.  Gallimore,  id.  260;  Powell  on  Mortgages,  205,  206, 
chap.  7.  In  this  state,  however,  it  has  been  held  that  a  mortgagor  is  en- 
titled to  notice  to  quit  before  he  can  be  treated  as  a  trespasser,  on  the 
ground  that  there  is  an  implied  consent  and  agreement  between  him  and 
the  mortgagee,  that  the  former  may  continue  to  occupy  the  premises. 
Jackson  v.  Laughhead,  2  Johns.  75;  Jackson  v.  Fuller,  4  Johns.  215; 
McKircher  v.  Hawley,  16  Johns.  289.    A  purchaser  of  the  interest  of 


Ch.  6)  EMBLEMENTS  397 

the  mortgagor,  or  a  lessee  under  him,  or  any  third  person,  stands  upon 
the  same  footing  here  as  in  England  and  is  not  entitled  to  notice  to  quit 
from  the  mortgagee.  There  is  no  privity  of  contract  or  estate  between 
the  mortgagee  and  such  third  person — as  to  him  they  are  trespassers. 
4  Johns.  215;  16  Johns.  289;  Jones  v.  Clark,  20  Johns.  61.  The  Eng- 
lish doctrine,  therefore,  in  relation  to  the  rights  of  a  mortgagee  against 
a  mortgagor,  or  his  grantees  or  assignees,  is  entirely  applicable  to  this 
case. 

In  Keech  v.  Hall,  Doug.  21,  already  referred  to,  the  mortgagee 
brought  an  action  of  ejectment  against  a  tenant,  who  claimed  under  a 
lease  from  the  mortgagor,  given  after  the  mortgage,  without  the  privi- 
ty of  the  mortgagee.  Lord  Mansfield  in  delivering  the  opinion  of  tlie 
court,  said,  "On  full  consideration  we  are  all  clearly  of  opinion,  that 
there  is  no  inference  of  fraud  or  concert  against  the  mortgagee  to  pre- 
vent him  from  considering  the  lessee  of  the  mortgagor  as  a  wrong 
doer."  The  question  turns  upon  the  agreement  between  the  mortgagor 
and  mortgagee;  when  the  mortgagor  is  left  in  possession,  the  true  in- 
ference to  be  drawn  is  an  agreement  that  he  shall  pwssess  tlie  premises 
at  will,  in  the  strictest  sense,  and  therefore  no  notice  is  ever  given  him 
to  quit,  and  he  is  not  even  entitled  to  reap  the  crop  as  other  tenants  at 
will  are,  because  all  is  liable  to  the  debt,  on  payment  of  which  the  mort- 
gagee's title  ceases.  The  mortgagor  has  no  power,  express  or  implied, 
to  let  leases  not  subject  to  every  circumstance  of  the  mortgage;  the 
tenant  stands  exactly  in  the  situation  of  the  mortgagor. 

This  court,  in  McKircher  v.  Hawley,  16  Johns.  292,  also  held  that 
the  relation  subsisting  between  the  mortgagor  and  mortgagee,  did  not 
imply  a  right  on  the  part  of  the  m.ortgagor  to  lease.  The  mortgagor, 
therefore,  in  giving  a  lease  becomes,  as  to  the  mortgagee,  a  disseizor 
(vide  also  Jackson  v.  Hopkins,  18  Johns.  487;  Dickenson  v.  Jackson, 
6  Cow.  147 ;  Woodfall,  237) ;  and  if  during  the  disseizin  he  should  cut 
down  the  grass,  trees  or  corn  growing  on  the  land,  the  disseizee  after 
reentry  may  have  an  action  of  trespass  vi  et  armis,  against  him  for 
the  trees,  grass  or  corn ;  for  after  reentry,  the  law,  as  to  the  disseizor 
and  his  servants,  supposes  the  freehold  always  to  have  continued  in 
the  disseizee,  though  perhaps  trespass  vi  et  armis  would  not  lie  against 
the  lessee,  for  the  fiction  of  law  shall  not  by  relation  make  him  a 
wrong  doer,  vi  et  armis,  who  comes  in  by  color  of  title,  because  in  fic- 
tione  juris  semper  sequitas  existiat  (Lifford's  case,  11  Coke,  51).  But 
though  the  lessee  shall  not  be  treated  as  a  trespasser,  still  if  he  cuts  the 
grass  and  trees  or  sows  the  land  and  cuts  and  carries  away  the  crops, 
they  may  be  recovered  by  the  disseizee  after  reentry;  the  reentry  by 
relation  revests  the  property  in  him,  as  well  for  the  emblements  as  the 
freehold,  and  equally  against  the  feoffee  or  lessee  of  the  disseizor,  as 
against  the  disseizor  himself,  though  it  will  not,  as  against  a  person 
coming  in  by  color  of  title,  give  him  an  action  of  trespass  vi  et  armis. 


398  EMBLEMENTS  (Ch.  6 

11  Coke,  51;  Dyer,  31,  173;  Powell  on  Mortgages,  213,  214,  chap.  7. 
Mr.  Powell  observes  that  as  to  emblements  there  is  a  distinction  be- 
tween tenants  who  have  particular  estates  that  are  uncertain,  defeasible 
by  the  act  of  the  parties,  or  by  the  act  of  God,  or  those  who  have  par- 
ticular estates  uncertain — defeasible  by  a  right  paramount;  for  in  the 
latter  case  he  that  hath  the  right  paramount,  shall  have  the  emblements. 
The  mortgagee  undoubtedly,  as  against  the  mortgagor  and  his  gran- 
tees, has  the  paramount  right.  Mr.  Powell  considers  the  right  of  a 
mortgagee  to  emblements  as  against  the  lessee  of  the  mortgagor,  as 
necessarily  resulting  from  the  doctrine  established  by  Lord  Mansfield, 
in  Keeth  v.  Hall,  Doug.  21,  that  a  mortgagor  has  no  right  to  lease;  he 
observes,  that  he  can  see  no  ground  on  which  the  case  of  such  lessee, 
as  to  emblements,  can  be  distinguished  from  any  other  tenant  under  a 
tortious  title ;  for  if  he  be  considered  a  wrong  doer  as  to  his  occupation 
of  the  premises,  he  can  not  be  considered  in  a  different  character  as  to 
the  emblements,  nor  can  there  be  any  ground  to  imply  a  consent  to 
cultivate  the  property,  when  no  implication  is  admitted  of  a  consent 
to  occupy  it;  Jacobs   Law  Diet.  Emblements  (4  Rep.  21). 

This  reasoning  appears  to  me  to  be  conclusive.  The  plaintiff,  there- 
fore, according  to  the  stipulation  of  the  parties  in  the  case,  is  entitled 
to  judgment  for  forty  dollars  damages  and  thirty  dollars  costs. ^* 


>-. 


.  ,  ,y  ■  DOLLAR  V.  RODDENBERY. 

(Supreme  Court  of  Georgia,  1S95.    97  Ga.  148,  25  S.  E.  410.) 

Roddenbery  brought  trover  and  bail  against  Dollar  et  al.  The  case 
was  submitted  to  the  judge  on  the  facts  hereafter  stated,  and  he  decid- 
ed that  plaintifif  should  recover  the  value  of  the  property  sued  for.  De- 
fendants excepted. 

Plaintiff  offered  in  evidence  deed  to  the  land  on  which  the  crop  in 
dispute  was  grown.  Defendants,  who  claimed  the  crop,  were  tenants 
of  Emma  F.  Dollar,  whose  husband  made  her  a  deed  to  it  in  1888, 
which  was  recorded  on  October  26,  1889.  On  September  17,  1888, 
she  made  a  deed  to  G.  A.  Wight,  to  the  land  in  dispute.  The  land  was 
afterwards  levied  on  under  the  fi.  fa.  of  Roddenbery,  issued  in  April, 
1888,  and  was  claimed  by  Wight ;  and  on  the  trial  of  the  claim  in  May, 
1892,  was  found  subject  to  the  fi.  fa.     The  land  was  brought  to  sale 

18  Ace.:  Downard  v.  Groff.  40  Iowa.  597  (1S75).  Compare  Hecht  v.  Dett- 
man,  56  Iowa,  679.  7  N.  W.  495,  10  N.  W.  241,  41  Am.  Kep.  131  (1881) ;  Reed 
V.  Swan,  133  Mo.  100.  34  S.  W.  100  (1S96). 

A.,  a  tenant  planted  a  crop;  he  sold  the  growing  crop  to  B. :  he  then  sur- 
rendered the  lease  to  the  lessor.  When  the  crop  was  ripe,  X.  gathered  it. 
Held,  B.  cannot  maintain  trover  against  X.  Debow  v.  Colfax,  10  N.  J.  Law, 
128  (1828). 


Ch.  6)  EMBLEMENTS  399 

under  this  fi.  fa.  in  July  1892.  Defendants  rented  from  Emma  F.  Dol- 
lar, and  the  crop  was  not  matured  and  ready  for  gathering  at  the  time 
of  the  sale,  but  was  at  the  time  the  sheriff  put  him  in  possession,  Au- 
gust 31,  1892.  The  judgment  under  which  the  land  was  sold  was  older 
than  the  rent  contract,  and  older  than  the  deed  to  Emma  F.  Dollar 
from  her  husband.  *  *  *  It  is  alleged,  that  the  court  erred  in 
holding  that  the  crop  raised  by  defendants  as  tenants  on  the  land,  pass- 
ed with  the  land  at  the  sale  in  July,  1892,  and  that  plaintiff  was  entitled 
to  recover  the  full  value  of  such  crops;  defendants  insisting  that  plain- 
tiff was  entitled  to  recover  a  reasonable  compensation  out  of  the  crops 
of  said  tenants  for  rent. 

Atkinson,  J.^'  A  judgment  in  this  State  operates  only  as  a  lien 
upon  the  property  of  the  debtor,  and  neither  divest  his  title,  nor  in  any 
manner  interferes  with  his  right  of  possession  or  control  over  his  prop- 
erty, until  it  is  enforced  and  the  title  transferred  to  another  by  a  sale 
under  execution.  Notwithstanding  the  rendition  of  a  judgment  against 
him  the  owner  of  land  may  lawfully  let  the  same  to  a  tenant  for  years 
or  at  will.  The  tenant,  however,  takes  the  leased  premises  subject  to 
the  right  of  the  judgment  creditor  to  terminate  its  existence  by  the  en- 
forcement of  the  judgment  and  sale  of  the  land.  In  such  a  case,  while 
the  tenancy  may,  by  contract  as  between  the  original  landlord  and  ten- 
ant, be  for  a  definite  term,  it  is  nevertheless  by  operation  of  law,  at  the 
will  of  the  judgment  creditor,  and  subject  to  be  determined  by  him  at 
any  time  by  an  enforcement  of  the  judgment. 

At  common  law  it  was  the  element  of  uncertainty  in  the  duration  of 
his  term  which  entitled  a  tenant  at  will  to  his  emblements.  See  Coke 
upon  Littleton,  vol.  1,  p.  55a.  And  this  element  of  uncertainty  is  in- 
troduced into  the  tenancy  now  in  question,  not  by  the  act  of  the  ten- 
ant, but  by  the  voluntary  act  of  the  judgment  creditor  who  is  now 
seeking  to  deprive  him  of  his  emblements.  If  uncertainty  in  the  dura- 
tion of  his  term  is  the  circumstance  which  entitled  the  tenant  to  his 
emblements,  surely  under  a  tenancy  at  one  time  certain,  but  afterwards 
rendered  uncertain  because  by  operation  of  law  it  came  to  be  at  the 
will  of  the  judgment  creditor,  the  tenant  ought  not  to  be  deprived  of 
his  emblements.  Under  an  execution  against  the  landlord,  the  sheriff 
is  entitled  to  seize,  and  the  purchaser  acquires  at  the  sale  no  greater 
interest  in  the  premises  than  the  landlord  himself  had.  If  this  be  true, 
and  that  it  is  cannot  be  seriously  questioned,  then  under  the  state  of 
facts  existing  here,  this  defendant  is  entitled  to  recover.  Such  recovery 
is  allowable  on  the  most  obvious  principles  of  justice  and  reason ;  be- 
cause the  time  for  the  termination  of  his  estate  is  rendered  uncertain, 
not  in  consequence  of  any  wrongful  act  of  the  tenant  himself  but  be- 
cause of  the  necessary  uncertainty  as  to  the  time  at  which  the  judgment 

18  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


400  EMBLEMENTS  (Cil.  C 

creditor  may  choose,  by  a  sale  of  the  rented  premises,  to  extinguish  the 
title  of  the  tenant's  lessor.  At  a  sale  of  the  property  of  the  landlord, 
the  purchaser  acquires  his  interest  in  the  leased  premises  and  as  well 
his  interest  in  the  way-going  crops,  but  no  more.  *  *  *  By  virtue 
of  his  purchase  at  the  sheriff's  sale,  the  purchaser  acquired  whatever 
interest  tlie  landlord  had  by  way  of  rent  in  the  unmatured  crops  at  the 
time  of  the  sale,  and  therefore  upon  the  maturity  of  the  crop  he  was 
entitled  to  the  entire  rent  of  the  premises  to  be  paid  by  the  tenant,  but 
not  to  the  entire  crop  of  the  tenant.  The  former  he  took  by  virtue  of 
his  purchase  at  the  sheriff's  sale.  The  latter  remained  in  the  tenant  by 
virtue  of  his  right  to  emblements.     *     *     * 

We  are  aware  of  the  line  of  decisions  in  other  States  in  which  it  is 
held  that  the  claim  of  a  mortgagee  to  the  growing  crop  is  superior  to 
that  of  a  tenant  to  his  emblements ;  but  in  all  of  those  cases,  it  will  be 
observed  that  the  mortgage  itself,  under  the  statute  of  the  State  in 
which  the  question  arose,  passed  the  legal  title  to  the  mortgagee  and  di- 
vested the  title  of  the  m.ortgagor.  We  encounter  no  such  difficulty 
here,  however;  for,  as. above  stated,  a  judgment  operates  simply  as  a 
lien  upon  tlie  property  of  the  debtor. 

We  are  the  more  readily  persuaded  to  the  correctness  of  this  conclu- 
sion, because  it  coincides  with  our  view  of  abstract  justice  and  of 
right.  It  is  an  ancient  maxim  of  the  law  that  he  who  rightfully  sows 
ought  to  reap  the  profits  of  his  labor,  and  if  he  rightfully  enter  in  sub- 
ordination to  the  title  of  another,  but  his  tenancy  be  terminated  with- 
out fault  on  his  part  and  in  consequence  of  some  uncertain  event,  he 
shall  be  allowed  to  take  away  his  way-going  crops ;  for  emblements,  in 
strict  law,  are  confined  to  the  products  of  the  earth  arising  from  the 
annual  labor  of  the  tenant.  The  tenant  under  the  protection  of  this 
rule,  is  invited  to  agricultural  industry  without  the  apprehension  of  loss 
by  reason  of  some  unforeseen  contingency  which  might  arise  and  termi- 
nate his  estate.  It  would  seem  to  us  a  most  unreasonable  rule,  and  one 
which  would  tend  greatly  to  embarrass  the  business  of  agriculture,  if 
every  tenant  who  rightfully  entered  under  the  owner  of  land,  after 
the  cultivation  of  his  crop  could  be  deprived  of  it  at  the  will  of  a  judg- 
ment creditor.  Under  such  a  rule  no  man  would  be  safe  in  the  enjoy- 
ment of  the  product  of  his  labor,  and  tlie  judgment  creditor  would  be 
thus  enabled  to  reap  where  he  had  not  sowed  and  gather  where  he  had 
not  strewed ;  and  this  is  not  allowable. 

Let  the  judgment  of  the  court  below  be  reversed.^" 

20  Aec. :  Heavllon  v.  Farmers'  Bauk  of  Frankfort,  SI  Ind.  2^9  (ISSl),  mort- 
gage foreclosure. 


INDEX 


[the  FIGDEES  BEIEB  TO  THE  PAGES] 


ACCESSION, 

Bona  fide,  160-173. 

Chattel  to  land,  193  Pierce,  195  note;  see  Fixtures. 

Mala  fide,  174-195. 

Quasi  contractual  relief  in,  171  Isle  Eoyale,  173  note. 

Relative  values  in,  160  Eaton,  162  note,  165  Trustees,  183  Single. 

Third  persons  claiming  under  title  based  on,  186-193. 

BAILEE, 

Actions  by,  4  Sutton,  6  Rooth,  9-17. 

Bailor,  when  right  good  against.  10  Woodson,  11  note. 

Damages  recoverable  by,  11  Winkfield,  15  Barvvick. 

Delivery  by,  to  true  owner  as  defense  to  action  by  bailor,  43  Western. 

Duty  to  preserve  article  bailed,  45  Keith. 

Origin  of  right  to  recover,  13-15. 

BAILMENT, 

Distinguished  from  sale,  195-210,  210  note. 

BAILOR, 

Actions  by,  17-24. 

CASE,  ACTION  ON  THE, 
Bailee,  by,  G  Rooth. 
Bailor,  by,  17  Anon.  23  White. 

CHATTEL, 

Bailee's  duty  with  respect  to,  43  West.  Transp.  Co.,  45  Keith. 
Finder's  duty  with  respect  to,  41  Mulgrave,  Isaack. 
Lost,  when,  35  Livermore,  37  Durfee. 
Real,  3, 

See  Fixtures. 
CONFUSION, 

Assented  to  by  both  owners,  197-210. 
Relative  values  in,  214-217. 

Third  persons  claiming  title  by,  213  note,  220-222. 
Unassented  to  by  one  owner^ 

Bona  fide,  211  Pickering. 

Mala  fide,  214-222. 

Burden  on  guilty  party,  217  Weil,  220  note. 
CROPS, 

Adverse  possessor,  right  to  value  of,  against,  394  Robert,  395  note. 

Devisee,  right  to,  385  Dennett. 

Emblements,  what  are,  390  Hendrlxson,  392  note,  392  Florala. 

Pass  by  conveyance  of  land,  381  Tripp. 

Reservation  of,  parol,  383  Flynt. 

Sale  of,  parol,  385  note. 

Tenant,  right  of,  to,  387-393,  396-400. 

Definite  term,  389-393. 

Judgment  creditor,  against,  398  Dollar. 

Real  mortgagee,  against,  396  Lane. 

Uncertain  term,  387-389. 

Bio.Pers.Pbop.— 26  (401) 


402  INDEX 

[Tlie  figures  refer  to  pages] 

DAMAGES, 

Accession,  bona  fide,  In,  165  Trustees. 

Mala  fide,  in,  182  Ellis,  183  Single. 
Crops  gathered  b.v  adverse  possessor,  for,  S94  Robert,  395  note. 
Wrongful  repledglng,  in,  123  Baltimore,  125  note. 

DEMURRAGE  CHARGES, 
Lien  for,  66  Schumacher. 

DETINUE, 

When  maintainable,  9  O'Neal,  9  note. 

EMBLEME3NTS, 
See  Crops. 

FINDER, 

Duty  of,  41  Mulgrave,  Isaack. 

Employer,  rights  against,  28  ."tafCordsbire,  29  Tatum,  33  Danielson. 
Lien  of,  55  Nicholson,  58  Wentworth. 
Owner,  rights  against,  39  Gardner,  42  Chase. 

Third  persons,  rights  against,  25  Amory,  26  Bridges,  29  Note,  37  Durfee. 
See  Mislaid  Goods. 

FIXTURES, 

Agreement  as  affecttng  character  of,  295  Noble,  298  Tyson,  354  Sowden, 

361  note,  366  Tippett 
Agricultural,  303  Elwes,  306  note,  338  McCullough. 
Appliances,  when. 

Business,  276-282,  301  Wystow,  302  Poole,  308  note. 

Household,  286-291. 
Buildings,  when,  204  Lipsky,  205  note,  303  Elwes,  338  McCullough. 
Conditional  sale  of,  360  Adams,  366  note,  366  Tippett,  371  Peck,  372  note, 

372  London. 
Converter,  annexation  by,  193  Pierce,  347  Shoemaker. 
Conveyance  of,  295-299,  344  note,  352-380. 
Electric  lighting  plant,  when,  283  Fechet. 
Intent  to  annex,  292-294. 
Licensee,  annexation  by,  342  King,  344  note. 
Machinery,  when,  265-275. 
Mortgage  of, 

Chattel,  352   Brennan,  354   Snowden,   360  note,  362  Campbell,  374 
Sanders,  376  Mass. 

Real,  352  Brennan,  355  Hobson,  360  note,  360  Adams,  362  Campbell, 
366  Tippett,  374  Sanders. 
Purpose  of  annexation,  265  McRea,  270  note,  338  note,  360  note. 
Rolling  stock,  when,  282  note. 
Severance,  296  note,  299  Guernsey. 
Tenants, 

Agricultural,  303  Elwes. 

Buildings,  306-312. 

Conversion  of,  325  Guthrie,  326  note. 

Household,  312  Wall,  315  note. 

Landlord's  rights  against  third  persons,  372-380. 

Lease,  new,  effect  of  on  right  to  remove,  315-321. 

Lien  on,  327-335. 

Trade,  301  Wystow,  302  Poole. 

Uncertain  termination  of  tenancy,  321  Ray,  324  note. 
Trespasser,  annexation  by,  347  Shoemaker,  350  Mitchell. 
Vendee,  annexation  by,  335  Westgate,  338  note,  345  Salter. 

FBUCTUS  INDUSTRIALES— NATURALES, 
See  Crops. 


INDEX  403 

[The  figures  refer  to  pages] 
GIFT, 

Aceeptanc-e  by  donee,  2G1  MaLoney,  263  note. 

Causa  mortis,  251  Devol,  252  note,  254  Drew. 

Deed,  by,  260  McEwen. 

Deliverj-,  how  far  essential  to,  241  Cochrane,  250  mUebrant,  251  note 

In  future,  L'55  Liebe,  261  note. 

Intent  in,  255  Liebe,  259  note. 
GUEST,  who  Is,  97  note. 

JUDGMENT, 

Satisfaction  of,  as  giving  ownership,  227-241. 
Title  based  on,  223-227. 

LIEN, 

Contract,  58  Wentworth,  61  note. 

Enforcement  of,  71  Shipping  Co.,  73  Ironworks.  74  note,  108  Jones. 

ueneral,  49-55. 

Loss  of. 

Excessive  demand,  lOS-113. 

Inconsistent  claim,  108  Boardraan,  113-117. 

Loss  of  possession.  97-107. 

Sale  of  chattel,  lOS  Jones. 

Taking  other  security,  117  Cowell. 
Particular,  49  Skinner,  60-70. 
Personal  to  lienor,  100  Ruggles. 

Possession,  how  far  essential  to,  97  McFarland,  102-107. 
Third  person,  when  good  against,  75-97. 
Who  has. 

Agister,  48  Chapman,  62  Jackson,  76  note. 

Attorney,  49  Bush,  53  Hurlbert,  55  note. 

Banker,  51  Davis. 

Carrier,  49  Skinner,  60  Rushforth,  61  note,  66  Schumacher,  79  Fitch 
84  Patten,  86  note. 

Carriage  repairer,  66  note. 

Dyer,  61  note.  66  note. 

Factor,  50  Kruger, 

Farrier,  66  note. 

Finder,  55  Nicholson,  58  Wentworth. 

Garage  keeper,  63  note. 

Grain  thresher.  66  note. 

Harness  cleaner,  66  note. 

Innkeeper,  87  Broadwood,  89  Bobbins,  92  Cook,  95  Gordon. 

Livery  stable  keeper,  104  Welsh,  106  Seebaum. 

Mechanic,  327-335,  354  Sowden. 

Packer,  53  note. 

Printer,  66  note,  70  Blake. 

Sawyer,  66  note. 

Shipwright,  66  note. 

Warehouseman,  64  Steinman,  72  note. 

Wharfinger,  53  note. 

MISLAID  GOODS, 

Distinguished  from  lost,  35  Llvermore,  37  DurfeCt 

OFFSPRING, 

Follow  parents,  157  Bryan,  238  White. 
OWNERSHIP, 
Created  by. 

Accession,  160-195. 
Adverse  possession,  150-160. 
Confusion,  195-222. 


404  INDEX 

[The  figilres  refer  to  pages] 

OWNERSHIP— Continued, 
Gift,  241-2G3. 
Judgment,  223-227. 
Possession,  141-149. 
Satisfaction  of  judgment,  227-241. 

PLEDGE, 

Assignment  of,  119  Goss. 

Damages  for  conversion  of,  123  Baltimore,  125  note. 
Sale,  wrongful,  122-132. 
Subpledgee,  rights  of,  133  Talty,  136  Whitney. 
POSSESSION, 

Adverse,  150-160. 

Change  of,  in  gift,  241  Cochrane,  250  Hlllebrant,  251  nota 
Defective  title  as  giving,  4  Sutton. 
Finder's  right  based  on,  25-43. 
Lien  based  on,  97  McFarland,  102-107. 
Ownership  given  by,  141-149. 
Servant  does  not  have,  7  Tuthill,  17  Anon. 
Trespasser  has,  4  Woadson. 
See  Trespass;  Trover. 

PROPERTY, 

Chattels  real,  3. 

Personal,  distinction  between,  and  real,  1-3. 
Real,  distinction  between,  and  personal,  1-3. 
Shares  of  stock,  personal,  3  note. 
See  Ownership. 

QUASI  CONTRACT, 

When  maintainable  In  accession,  171  Isle  Royale,  173  note. 

REPLEVIN, 

Fixtures,  when  recoverable  in,  195  note,  344  Salter. 
Forthcoming  bond  in,  164  Herdie,  183  Single. 
Maintainable  against  owner  when,  10  Woodson. 

TENDER, 

In  action  for  misdealing  with  pledge,  122-127. 

TREASURE  TROVE,  33  Danielson. 

TRESPASS  DB  BONIS, 

Bailor,  by,  20  Lotan,  22  Holly. 
Based  on  possession,  when,  4  Woadson,  18  Ward. 
Misuse  by  bailee,  when  lies  for,  17  Anon. 
Servant,  when  liable  in,  17  Anon. 

TROVER, 

Bailor,  by,  21  Loeschman. 

Based  on  possession,  when,  15  Barwlck,  IS  Gordon. 

Purchaser  under  defective  sale,  when  may  maintain,  4  Sutton. 

Servant,  by,  7  Tuthill. 

WAREHOUSEMAN, 

Confusion,  rights  of,  in,  197-210. 
Lien  of,  64  Steinman,  72  note. 


THEST  FUBLISBINS  CO.,  rBINTEBa,  BT.  PAUL,  MINN. 


LAW  LITERARY 

UNIVIIISITY  OF  CALIFORNU 

LOS  ANGELES 


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y    *•  it--. 


